German Jesuit priest Friedrich von Spee, an opponent of the torture and trial of people accused of witchcraft, writes: “It is incredible what people say under the compulsion of torture, and how many lies they will tell about themselves and about others; in the end, whatever the torturers want to be true, is true.” [Vanity Fair, 12/16/2008; Catholic Encyclopedia, 2009]

Woodcut depicting waterboarding included in J. Damhoudere’s ‘Praxis Rerum Criminalium,’ Antwerp, 1556. [Source: NPR]With the advent of the “Enlightenment,” many countries ban the practice of waterboarding, with at least one calling it “morally repugnant.” Waterboarding has been around since the 14th century, known variously as “water torture,” the “water cure,” or tormenta de toca, a phrase that refers to the thin piece of cloth placed over the victim’s mouth. Officials for the Spanish Inquisition were among those who waterboarded prisoners; the Inquisition, recognizing the potentially lethal effect of the practice, required a doctor to be present when a prisoner was waterboarded. Historian Henry Charles Lea, in his book A History of the Inquisition of Spain, will describe waterboarding as follows: “The patient strangled and gasped and suffocated and, at intervals, the toca was withdrawn and he was adjured to tell the truth. The severity of the infliction was measured by the number of jars [of water] consumed, sometimes reaching to six or eight.” Waterboarding actually refers to two separate interrogation techniques: one involving water being pumped directly into the stomach, and another that features the steady streaming of water into the throat. The first, according to author Darius Rejali, “creates intense pain. It feels like your organs are on fire.” The second will be the method later preferred by US interrogators, who will use it on suspected terrorists. This method is a form of “slow motion drowning” perfected by Dutch traders in the 17th century, when they used it against their British rivals in the East Indies. In 2007, reporter Eric Weiner will write: “[W]aterboarding has changed very little in the past 500 years. It still relies on the innate fear of drowning and suffocating to coerce confessions.” [National Public Radio, 11/3/2007]

The US Supreme Court rules that American courts are not interested in the manner in which a defendant comes to stand before them. The ruling is issued in the case of Ker v. Illinois, which concerns the rendition from Lima, Peru, of a suspect named Frederick Ker, wanted for larceny in Cook County, Illinois. Ker was seized by a federal agent who bypassed the extradition procedure and placed him on a series of ships that transported him home to face trial. Ker is convicted and the doctrine this case gives rise to—known as the Ker doctrine for a time—will go on to underlie the US’s rendition program at the end of the 20th and beginning of the 21st centuries. [Grey, 2007, pp. 134-135]

Future president Theodore Roosevelt, writing about the use of waterboarding as an interrogation method during the Spanish-American War, defends the practice. “The enlisted men began to use the old Filipino method: the water cure” (see 1800 and After), he writes in a letter. “Nobody was seriously damaged.” During the war, a US soldier, Major Edwin Glenn, was suspended and fined by an Army court-martial for waterboarding a prisoner. The Army judge advocate wrote that the charges constituted a “resort to torture with a view to extort a confession.” He recommended disapproval because “the United States cannot afford to sanction the addition of torture.” [National Public Radio, 11/3/2007]

The German Reich Ministry of Justice issues a secret memo following a meeting of several Justice Ministry lawyers and public prosecutors with senior Gestapo officers. The participants discuss the fact that Germany has been on a war footing for years, and the leaders’ worry that the citizenry is riddled with sleeper cells of subversives. The solution: detaining and torturing subversives. It is unclear whether torture will be used to terrorize other subversives, to extract information, or produce confessions. German law enforcement officials are balky at applying “more rigorous interrogation” techniques. Though some judges seem unmoved by defendants appearing in court with obvious marks of torture upon their bodies, the law enforcement officers are bureaucrats in a system that has always respected the rule of law and the Hitler government was originally elected on a law-and-order platform. The memo is the product of the top officials in the Gestapo and Justice Ministry, and lays out detailed instructions as to when torture techniques can be applied, the specific equipment used in such interrogations, and how many times particular techniques could be used on certain categories of detainees. Perhaps most importantly, the memo promises immunity from prosecution to any German interrogator who follows the rules as laid down in the memo. Specific Instructions - It reads in part: “At present, we thus have a situation which cannot continue: a deficient sense of what is right on the part of judicial officers; an undignified position for police officers, who try to help matters by foolish denials [that torture has taken place in court proceedings].… [I]nterrogations of this kind [torture] may be undertaken in cases where charges involve the immediate interests of the state.… chiefly treason and high treason. Representatives of the Gestapo expressed the opinion that a more rigorous interrogation could also be considered in cases of Jehovah’s Witnesses, explosives, and sabotage.… As a general principle, in more rigorous interrogations only blows with a club on the buttocks are permissible, up to 25 such blows. The number is to be determined in advance by the Gestapo.… Beginning with the tenth blow, a physician must be present. A standard club will be designated, to eliminate all irregularities.” Gestapo Headquarters in Berlin must give permission for more “rigorous interrogation[s],” the memo continues. Drawing Parallels to Bush Administration Torture - The memo will be the subject of a 2009 article by Shayana Kadidal, the senior managing attorney of the Guantanamo project at the Center for Constitutional Rights. Kadidal will draw parallels between the Nazi torture authorization and similar legal justifications issued by the American government after the 9/11 attacks (see March 2, 2009 and April 21, 2009). Kadidal will write: “I realize that, as a matter of principle, there is a strong bias against making Nazi analogies to any events happening in our modern world.… But here we have: (1) a system set up to allow torture on certain specific individual detainees, (2) specifying standardized equipment for the torture (apparently down to the exact length of the club to be used), along with physician participation to ensure survival of the victim for the more several applications, (3) requiring prior approval of the use of torture from the central authorities in the justice department and intelligence agency in the capital, so as to ensure that (6) the local field officers actually carrying out the abuse are immune from prosecution.” [Huffington Post, 4/21/2009]

Sherwood F. Moran (right) interrogating a Japanese prisoner during the battle of Guadalcanal. [Source: Associated Press]Marine interrogator Major Sherwood F. Moran writes an informal memo for use by other interrogators. Moran is a legendary figure among Marines, renowned for his ability to coax information from the most reluctant or resistant Japanese captive, even during the height of battle, and often using his knowledge of, and respect for, Japanese culture to his advantage. His memo will remain relatively unknown outside the Marine Corps until the summer of 2003, when it will be included in the archives of the Marine Corps Interrogator Translator Teams Association. The memo, titled “Suggestions for Japanese Interpreters Based on Work in the Field,” is remarkable for its insistence that treating prisoners with humanity and respect works far better than “harsh” interrogation methods. Author Ulrich Straus, an expert on Japanese POWs held in US captivity during World War II, will later write that Moran “was a particularly effective interrogator because he treated each prisoner as another human rather than as the enemy.” In 2005, after the Abu Ghraib scandals become media fodder, military historian Stephen Budiansky will write: “Six months before the abuses at Abu Ghraib prison broke into public view, a small and fairly obscure private association of United States Marine Corps members posted on its Web site a document on how to get enemy POWs to talk. The document described a situation very similar to the one the United States faces in the insurgencies in Iraq and Afghanistan: a fanatical and implacable enemy, intense pressure to achieve quick results, a brutal war in which the old rules no longer seem to apply.… Moran, the report’s author, noted that despite the complexities and difficulties of dealing with an enemy from such a hostile and alien culture, some American interrogators consistently managed to extract useful information from prisoners. The successful interrogators all had one thing in common in the way they approached their subjects. They were nice to them. Moran was writing in 1943, and he was describing his own, already legendary methods of interrogating Japanese prisoners of war. More than a half century later his report remains something of a cult classic for military interrogators.” [David R. Moran, 2005]Human-to-Human Attitude - Moran writes that the best interrogators (whom he says should consider themselves “interviewers”) become “wooers” of their captives, coaxing information rather than attempting to force confessions. Most important, Moran writes, is the interrogator’s attitude towards his prisoner. “Many people, I suppose, would on first thought think ‘attitude’ had nothing to do with it; that all one needs is a knowledge of the language, then shoot out questions, and expect and demand a reply,” he writes. “Of course that is a very unthinking and naive point of view.” Just as important, Moran writes, is a sympathy and understanding of the captive’s culture. A superior or demeaning attitude breeds nothing but antagonism and resistance. Speaking the Language of the Captive - Almost as important, Moran notes, is the interrogator’s ability to speak directly to the captive in his own language, without the need for translators. An interrogator should speak the language fluently and idiomatically, or, when that is not possible, to at least have some command over common phrases. “After all, the first and most important victory for the interviewer to try to achieve is to get into the mind and into the heart of the person being interviewed,” he writes. Hidden System - Fellow feelings and warm sympathy towards the captive are necessary, but not the entire package. While the captive, or an outside observer, might believe that the interrogator is merely indulging in friendly chit-chat, the interrogator must have an agenda and a plan in place at all times. “[I]n the workings of your mind you must be a model of system,” Moran says. “You must know exactly what information you want, and come back to it repeatedly. Don’t let your warm human interest, your genuine interest in the prisoner, cause you to be sidetracked by him! You should be hard-boiled but not half-baked. Deep human sympathy can go with a business-like, systematic, and ruthlessly persistent approach.” Short-Circuiting Patriotic Defensiveness - To emphasize that your side, your nation, or your culture is superior—in essence, the “conquerors” of the captive’s military or his nation—is counterproductive, Moran writes. “To emphasize that we are enemies, to emphasize that he is in the presence of his conqueror, etc., puts him psychologically in the position of being on the defensive, and that because he is talking to a most-patient enemy and conqueror he has no right and desire to tell anything,” he writes. Breaking Recalcitrant Prisoners - Sometimes even the best interrogators come up against recalcitrant prisoners who flatly refuse, for patriotic reasons or what Moran calls “conscientious scruples,” to give any information. In these cases, Moran writes, harsh or physical techniques of intelligence extraction are counterproductive. Instead, he writes, with his Japanese captives he is often able to shame the prisoner into cooperating. Reminding the captive that he has been treated humanely, has been treated with kindness and courtesy, implies a quid pro quo—not the threat of having this treatment withdrawn if cooperation is not forthcoming, but a matter of the captive returning the interrogator’s courtesy with information. [Moran, 7/17/1943 ]

Japanese soldier Chinsaku Yuki is tried by the US for war crimes involving, among other offenses, waterboarding Filipino civilians. One of his victims is lawyer Ramon Navarro. During the trial, Navarro recalls being waterboarded by Yuki. “When Yuki could not get anything out of me, he wanted the interpreter to place me down below,” he tells the court. “And I was told by Yuki to take off all my clothes, so what I did was to take off my clothes as ordered. I was ordered to lay on a bench and Yuki tied my feet, hands, and neck to that bench, lying with my face upward. After I was tied to the bench, Yuki placed some cloth on my face. And then with water from the faucet, they poured on me until I became unconscious. He repeated that four or five times.” Asked if he could breathe, Navarro says: “No, I could not, and so I, for a time, lost consciousness. I found my consciousness came back again and found Yuki was sitting on my stomach. And then I vomited the water from my stomach, and the consciousness came back again for me. [The water came f]rom my mouth and all openings of my face… and then Yuki would repeat the same treatment and the same procedure to me until I became unconscious again.” Navarro recalls he was tortured like this “four or five times.” He says he lied to Yuki to end the torment: “When I was not able to endure his punishment which I received, I told a lie to Yuki.… I could not really show anything to Yuki, because I was really lying just to stop the torture.” He describes the waterboarding as “[n]ot so painful, but one becomes unconscious—like drowning in the water.… Drowning. You could hardly breathe.” Yuki is sentenced to life in prison for a variety of war crimes, including his torture of Navarro. [National Public Radio, 11/3/2007]

In the aftermath of World War II, Japanese officer Yukio Asano is charged by a US war crimes tribunal for torturing a US civilian. Asano had used the technique of “waterboarding” on the prisoner (see 1800 and After). The civilian was strapped to a stretcher with his feet in the air and head towards the floor, and water was poured over his face, causing him to gasp for air until he agreed to talk. Asano is convicted and sentenced to 15 years of hard labor. Other Japanese officers and soldiers are also tried and convicted of war crimes that include waterboarding US prisoners. “All of these trials elicited compelling descriptions of water torture from its victims, and resulted in severe punishment for its perpetrators,” reporter Evan Wallach will later write. In 2006, Senator Edward Kennedy (D-MA), discussing allegations of US waterboarding of terror suspects, will say in regards to the Asano case, “We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II.” [Washington Post, 10/5/2006; National Public Radio, 11/3/2007]

The US Supreme Court reaffirms the Ker doctrine (see December 6, 1886), which underlies rendition. The court rules on the case of Shirley Collins, who had been convicted of murder in Michigan. Prior to the trial, Collins had lived in Chicago, Illinois. Officers from Michigan came and “forcibly seized, handcuffed, blackjacked, and took him to Michigan.” After being convicted, Collins appealed to the Supreme Court, citing the federal Kidnapping Act and arguing his conviction should be quashed due to the abduction. However the Supreme Court finds that there is “nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” [Grey, 2007, pp. 134-135]

Albert Biderman, an Air Force sociologist, publishes a study that notes how “brainwashing” had been achieved by depriving prisoners of sleep, exposing them to intense cold, and forcing them into excruciatingly painful “stress positions” for long periods of time. Biderman’s study is based on techniques used by Chinese Communist interrogators against US prisoners of war, which produced little real intelligence but excelled in producing false confessions (see December 2001). In 2002, Biderman’s study will become the basis of a interrogators’ training class for use against detainees at Guantanamo (see July 2002). [Vanity Fair, 12/16/2008]

Cover art for the 1966 film ‘Lost Command,’ based on the book ‘Les Centurions.’ [Source: Cinema Forever (.com)]The French novel Les Centurions, by Jean Larteguy, features an early version of the so-called “ticking time bomb” scenario, in which torture is used to force critical information from a prisoner. The book, set during France’s occupation of Algeria, features a hero who beats up a female Arab dissident in order to learn the location of bombs planted throughout the city of Algiers. The hero uses the information gleaned from the beating of the woman to find and defuse the bombs. The book will be made into a 1966 film, Lost Command, starring Anthony Quinn. [Cinema Forever, 2009; National Public Radio, 5/5/2009]

The CIA’s KUBARK interrogation manual is straightforward about the unreliability of torture as a means to acquire useful intelligence. (KUBARK is a CIA cryptogram for the agency itself.) The “KUBARK Counterintelligence Interrogation” manual states: “Intense pain is quite likely to produce false confessions, concocted as a means of escaping from distress. A time-consuming delay results, while investigation is conducted and the admissions are proven untrue. During this respite the interrogatee can pull himself together. He may even use the time to think up new, more complex’ admissions’ that take still longer to disprove.” The KUBARK manual is the product of over 10 years of research and testing, based on the experiences of US soldiers captured and tortured by Chinese interrogators. Waterboarding, called a method of “touchless torture,” elicited false confessions from the captured soldiers that the US planned to use biological weapons against North Korea. [Washington Post, 10/5/2006; Vanity Fair, 12/16/2008]

The Washington Post runs a front-page photo of a US soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption says the technique induced “a flooding sense of suffocation and drowning, meant to make him talk.” Because of the photo, the US Army initiates an investigation, and the soldier is court-martialed and convicted of torturing a prisoner. [National Public Radio, 11/3/2007]

US Army intelligence manuals provided to Latin American military officers attending the US Army’s “School of the Americas” advocate executions, torture, blackmail and other forms of coercion against insurgents and sanctions the use of “fear, payment of bounties for enemy dead, beatings, false imprisonment, executions and the use of truth serum” to recruit and control informants. [Washington Post, 9/21/1996]

A Texas sheriff and three of his deputies are charged with violating the civil rights of several prisoners in their custody. According to the complaint, the four conspired to “subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning.” The procedure will later become known as “waterboarding.” All four are convicted, and the sheriff is sentenced to 10 years in prison. [Washington Post, 11/4/2007]

After commodities trader Marc Rich leaves the US over charges that he has evaded $48 million in tax in 1983, US authorities consider rendering him back to the US to face trial. [Grey, 2007, pp. 133] Howard Safir, head of the US Marshals Service, will later say that in 1985 he monitored Rich at his home in Switzerland in an attempt to serve an arrest warrant on him, so rendition may have been considered at this point. However, Rich will remain a fugitive until 2001, when he is pardoned by Bill Clinton. [Washington Post, 3/13/2001] Whenever rendition is considered, according to Safir, the plan is abandoned when the Swiss warn US agents they will be arrested if they try anything. [Grey, 2007, pp. 133]

Fawaz Younis, a militant for the Lebanese Amal organization who has just been captured by the US (see June 14-30, 1985 and September 18, 1987), is kept in poor conditions, according to a later account he gives. Yousef will make the following allegations of mistreatment: Both his wrists are broken when he is captured and he is not given medical treatment or painkillers for five days. However, according to the US, the broken wrists are not discovered until Younis is transported to the US, a few days after his capture. While being held at sea, he is placed in a “highly heated cabin” and, “An exhaust pipe inside the cabin blew sand and hot air during that period, and my only resort for fresh air was to constantly ask my abductors to go to the toilet, where I could breathe fresh air.” Younis will also say he suffered from seasickness. At his trial, he will say that a confession was coerced from him thanks to these factors, but will be convicted. However, FBI spokesman Frank Scafidi will dismiss the claims, saying: “This man was convicted. He is raising these allegations while sitting in prison, and I think that speaks for itself. The FBI as [a] matter of policy treats prisoners or arrestees in conformance with its policies and regulations.” [Milwaukee Journal Sentinel, 1/24/1999]

A group of US agencies, comprising the CIA, FBI, DEA, and Defense Department, cooperates on the capture and rendition of Fawaz Younis, an Islamic militant linked to Lebanon’s Amal militia who was previously involved in two airplane hijackings. Arrested, Transferred to US - Younis is captured after being lured to a boat in international waters off Cyprus. He is then arrested and transferred to an aircraft carrier, from where he is flown directly to the US. The operation, which costs US$20 million, is so complicated because of rules set by the Justice Department. [Trento and Trento, 2006, pp. 78-94] Author Stephen Grey will call the rules “very tight.” CIA manager Duane Clarridge will say, “This meant that Yunis had to be apprehended by the FBI in international waters or airspace, remain in constant custody of the feds, and remain clear of the turf of any sovereign nation—for the entire duration of his 4,000-mile journey to the United States.” [Grey, 2007, pp. 133-134]Details of Hijackings - In the first hijacking, Younis seized a plane in Beirut and attempted to fly it to Tunis, where the Arab League was meeting. The aim was to pressure the League into urging the Palestine Liberation Organization to leave Lebanon, as relations between it and local people had deteriorated. In the second hijacking, which took place five days later, the plane was seized by a team from Islamic Jihad and Hezbollah, who beat the passengers and shot one of them, US Navy diver Robert Stethem. Posing as a crewman during a stopover in Beirut, Younis entered the plane and took control of the hijacking. The passengers were removed from the plane in groups, and dispersed through Beirut. They were later released in return for safe passage for the hijackers (see June 14-30, 1985). Lured by Informant - The man who lured Younis to the boat is Jamal Hamdan, who had previously worked with the CIA on a false flag operation in Germany (see After Mid-April 1986). Authors Joe and Susan Trento will describe Hamdan as “a street hustler, murderer and drug dealer,” adding, “Hamdan’s Beirut police file is impressive.” Thanks to his connection to Amal, Hamdan was able to operate for a time despite his killings, but in 1985 he murdered a senior Druze official and then his sister-in-law, leading to his imprisonment. Amal leader and US intelligence asset Nabih Berri informed the US that Hamdan could help them with some drug cases, and he began providing the DEA and CIA with information about US-based drug dealers, which got him released from prison. Deal for Asylum - In return for helping the operation to capture Younis, dubbed operation Goldenrod, Hamdan insisted on “huge cash payments” and asylum for himself and his family in the US. The Trentos will comment, “In other words, the FBI arranged to bring into our country a murderer and terrorist in return for the capture of an airplane hijacker who had never killed any Americans.” [Trento and Trento, 2006, pp. 78-94]

The Justice Department issues a memo formally authorizing the use of rendition as a technique by the CIA and FBI to transport terrorist suspects from foreign countries. The terrorists are to be brought to the US, where they will face trial. This is the first known official use of the term rendition, although it is already in informal use. According to CIA Director William Webster, the technique is to be used in countries like Lebanon, due to the poor state of the judicial system there, and the other country’s government does not have to be informed or approve the operation. Webster will comment, “It seems to me that you have a different set of circumstances in a country like Lebanon which has no capacity to provide law enforcement or assistance than going to another neighbor such as Sweden or someplace and lifting somebody out of there.” Webster will point out that US courts will not consider seizing a terrorist in another country a bar to trying him in the US, as courts “do not much care how the defendant happened to come into America.” [Washington Post, 11/4/1989; Grey, 2007, pp. 133-134] At least one such rendition operation was carried out before the memo was issued (see September 18, 1987).

According to CIA Director William Webster, the US considers mounting a rendition operation against the bombers of Pan Am Flight 103. The plane was blown up over Lockerbie, Scotland, causing 270 fatalities in December 1988. Nearly a year later, Webster tells the Washington Post that the administration hopes to locate, seize, and bring to the US for trial the terrorists responsible for the bombing. However, it is not known who committed the bombing at this point. Discussion of the US response to the bombing leads the Justice Department to issue a memo formally authorizing the technique of rendition (see June 1988). [Washington Post, 11/4/1989] As of fall 2008, the full list of operatives involved in the bombing is not known and there are no public records of any of the known alleged bombers being rendered to the US.

The United States executes an extraordinary rendition of Humberto Alvarez-Machain, a Mexican doctor accused of being involved in the torture and killing of a DEA official. He is captured in Mexico and taken to the US without the approval of the Mexican government. The rendition, approved by President George Bush, draws strong criticism from the Mexicans, who were not informed of Alvarez-Machain’s abduction in advance and believe the matter should have been dealt with under the extradition treaty between the two countries. [US House of Representatives, 7/24/1992; Washington Post, 10/21/2007] Alvarez-Machain will be tried in the US and the rendition issue will go all the way to the Supreme Court (see June 15, 1992).

The latest edition of the US Army’s Field Manual 34-52 is published, and it includes rules governing interrogations. It unequivocally states that binding international treaties and US policy “expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation. Such illegal acts are not authorized and will not be condoned by the US Army.” It defines “physical torture” to include “infliction of pain through chemicals or bondage,” “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” “food deprivation,” and “any form of beating.” It notes that the “use of torture by US personnel will bring discredit upon the US and its armed forces while undermining domestic and international support for the war effort. It also may place US and allied personnel in enemy hands at a greater risk of abuse by their captors.” These regulations will still be in effect after 9/11. [CBC News, 11/16/2005]

The US Supreme Court reaffirms the Ker-Frisbie doctrine, which states that a US court will not concern itself over how a suspect came to stand before it for trial. The reaffirmation is part of a ruling on the case of Humberto Alvarez-Machain, a Mexican doctor allegedly involved in the kidnap and murder of a DEA agent who was rendered from Mexico by US agents without Mexico’s consent under the extradition treaty with the US (see April 1990). The Ker-Frisbie doctrine reaches back to the 19th century and states that US courts have jurisdiction over a criminal defendant regardless of the means by which that defendant was brought before the court, as a breach of general international law principles does not generally affect the jurisdiction of a domestic court. [US House of Representatives, 7/24/1992] However, Alvarez-Machain will be acquitted later by a lower court on the facts of the actual charges. [Grey, 2007, pp. 135]

The United States begins a practice known as “rendition,” the official purpose of which is to bring suspected foreign criminals to justice. Suspects detained abroad are “rendered” to courts in the United States or other countries. In some cases they are transferred to countries with poor human rights records and tortured. Some are convicted, even put to death, without a fair trial. [Washington Post, 1/2/2005, pp. A01] The frequency of renditions will increase dramatically after the September 11 attacks (see After September 11, 2001). [Washington Post, 3/11/2002, pp. A01; New York Times, 3/9/2003; Washington Post, 5/11/2004, pp. A01]Gore: "Go Grab His Ass" - The policy is proposed by Richard Clarke, head of the Counterterrorism Security Group, who is aware of a suspect he wants to have rendered. However, White House Counsel Lloyd Cutler opposes the policy, saying it violates international law, and demands a meeting with President Clinton to explain the issue to him. Clinton appears favorable to Cutler’s arguments, until Vice President Al Gore returns from a foreign trip. Gore listens to a recap of the arguments and comments: “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.” However, the first operation fails. Comment by Clarke - Clarke will later write: “We learned that often things change by the time you can get a snatch team in place. Sometimes intelligence is wrong. Some governments cooperate with the terrorists. It was worth trying, however, because often enough we succeeded.” [Clarke, 2004, pp. 144]

FBI agents fly to Cairo to take charge of Egyptian Mohammed (or Mahmud) Abouhalima, who will later be convicted for his role in the 1993 World Trade Center bombings (see Summer 1993). Abouhalima has been tortured by Egyptian intelligence agents for 10 days (see March 1993), and has the wounds to prove it. In 2008, a Vanity Fair report will state, “As US investigators should have swiftly realized, [Abouhalima’s] statements in Egypt were worthless, among them claims that the bombing was sponsored by Iranian businessmen, although, apparently, their sworn enemy, Iraq, had also played a part.” [Vanity Fair, 12/16/2008]

Omar Mohammed Ali Rezaq is rendered from Nigeria to the US. [Grey, 2007, pp. 245] Rezaq had led the hijacking of an EgyptAir plane for the Abu Nidal group in 1985, and had been sentenced to 25 years in prison in Malta after the plane was re-taken there with much loss of life. However, Rezaq only served seven years before somehow leaving the prison and traveling to Ghana. When he attempts to enter Nigeria, he is seized by the local authorities and turned over to the FBI, which renders him to the US. Rezaq will later be sentenced to 25 years in jail in the US for air piracy, and Judge Royce Lamberth will recommend that any request for parole be rejected. The other hijackers died when the plane was retaken. [CNN, 10/7/1996]

Following his arrest after the Bojinka plot was shut down by Philippine police (see January 6, 1995), Abdul Hakim Murad is allegedly tortured. He is reportedly subjected to sleep and food deprivation in the first few hours, and his lawyer will also claim that he is subjected to electric shocks, force-fed, and waterboarded. However, according to author Peter Lance, “these techniques only cause[d] Murad to stonewall.” The interrogation is then turned over to Colonel Rodolfo Mendoza of the Philippine police, who elicits information from Murad using two methods: First, Mendoza ensures that he is extremely hungry when the first interrogation starts, and takes a McDonald’s hamburger, French fries, and a Coke into the interrogation room, placing them in front of Murad. Mendoza says that he must give him some additional information before he can eat. Secondly, Mendoza threatens him by saying that he could be handed over to the Mossad, and claims that fellow Bojinka conspirator Wali Khan Amin Shah is already in their hands, even though Shah is still a fugitive (see January 13, 1995). These techniques are much more successful and Murad provides a good deal of additional information (see January 20, 1995, February 1995-1996, and February-Early May 1995). [Lance, 2006, pp. 181-3]

After Ramzi Yousef is arrested in Pakistan (see February 7, 1995), he is rendered to the US. He is read his rights before he boards the rendition flight and, as author Peter Lance will later comment, “at that time, in February 1995, the Justice Department was still quite scrupulous about the due process issues, so much so that after Yousef was led onto the plane [US agents] read him his Miranda warnings a second time.” [Lance, 2006, pp. 203] The aircraft used for the rendition belongs to the US Air Force and the operation is run by FBI manager Neil Herman. The plane is moved to a “quiet area” of Islamabad airport and, according to author Simon Reeve, Yousef is then “bundled on to the jet.” [Reeve, 1999, pp. 107] National Security Council official Daniel Benjamin will explain why Yousef and Mir Aimal Kasi (see January 25, 1993) are not extradited in the normal manner, but rendered: “Both were apprehended in Pakistan, whose leaders decided that the nation would rather not have those two—folk heroes to some—sitting in jail, awaiting extradition. Pakistan’s leaders feared that cooperating with the United States would be dangerously unpopular, so they wanted the suspects out of the country quickly.” [Washington Post, 10/21/2007] Yousef makes a partial confession while being flown to the US (see February 8, 1995).

Thomas Donlon. [Source: Thomas Donlon]Abdul Hakim Murad, a conspirator in the aborted Bojinka plot, gives FBI agents details of Bojinka and other terrorist plots against the United States while he is being flown to America from the Philippines, and one possible future attack he mentions is a second bombing of the World Trade Center. [New York Times, 8/6/1996; Lance, 2003, pp. 280; Graff, 2011, pp. 182] Philippine authorities hand Murad over to the FBI at Ninoy Aquino International Airport in Manila on April 12. During the long flight to the US, he is interviewed by Special Agents Frank Pellegrino and Thomas Donlon for about five hours. He is read his Miranda rights twice. He then agrees to talk to Pellegrino and Thomas on the plane in English, without an interpreter. He says he wants to cooperate with the US government and agrees to give a statement. [United States v. Yousef, 5/29/1996; United States v. Yousef et al., 5/3/2002 ; Graff, 2011, pp. 182] He then provides the two FBI agents with minute details of the Bojinka plot and describes other plots against the US. [Lance, 2003, pp. 280; Graff, 2011, pp. 182]Murad Describes His Role in Bojinka - Murad says his planned role in Bojinka was to board a flight in Singapore and plant a bomb on it before it made its first stop, in Hong Kong. After the plane landed in Hong Kong, he was to take a different flight back to Singapore and plant a bomb on this plane too. He says he’d expected the explosion when the bomb went off would tear a hole in the aircraft and cause it to crash in the Pacific Ocean. He says he believes other conspirators were going to bomb other flights. He says Ramzi Yousef, mastermind of the 1993 WTC bombing, told him the bombing of a Philippine Airlines flight in December 1994 was a test run to ensure that the chemicals and timing devices in the bombs the Bojinka perpetrators would use worked properly (see December 12, 1994). [New York Times, 8/6/1996; United States v. Yousef et al., 5/3/2002 ]Murad Describes Possible Future Attacks - Murad also describes some plans for future terrorist attacks. He says he discussed with Yousef the possibility of blowing up a nuclear plant in the US and the two men talked about conducting additional attacks on American airline carriers, such as United Airlines and Northwest Airlines. He says the aim of these attacks would be “to make the American people and the American government suffer for their support of Israel.” [New York Times, 8/6/1996; Lance, 2003, pp. 510] One chilling piece of information he provides is that Yousef intends to return to the US to bomb the WTC a second time. This is because Yousef “felt that he should have been able to bring it down the first time, but lack of money had left him unable to build a bomb of sufficient size,” journalist and author Garrett Graff will later write. [Lance, 2003, pp. 280; Graff, 2011, pp. 182] During the interview, Murad is “cooperative” and “a gentleman,” Pellegrino will state. He “answered all the questions without hesitation,” Pellegrino will say. [New York Times, 8/6/1996] The flight with Murad on board arrives in New York on April 13. [United States v. Yousef, 5/29/1996]

The CIA proposes a policy of abducting Islamic Jihad militants and sending them to Egypt which will soon be approved by President Bill Clinton (see June 21, 1995). The Clinton administration began a policy of allowing abductions, known as “renditions,” in 1993 (see 1993). At first, renditions were rarely used because few countries wanted the suspects. Michael Scheuer, head of the CIA’s bin Laden unit, is one of the architects of a 1995 agreement with Egypt to send rendered militants there. He will later recall: “It was begun in desperation.… We were turning into voyeurs. We knew where these people were, but we couldn’t capture them because we had nowhere to take them,” due to legal and diplomatic complications. The CIA realized that “we had to come up with a third party.” Egypt was the obvious choice because the Islamic Jihad is the prime political enemy of the Egyptian government, and many Islamic Jihad militants also work for al-Qaeda, an enemy of the US. Turning a Blind Eye - However, the Egyptian secret police force, the Mukhabarat, is notorious for its torture of prisoners. As part of the program, the US helps track, capture, and transport suspects to Egypt (see Before Summer 1995) and then turns a blind eye while the Egyptians torture them. Scheuer claims the US could give the Egyptian interrogators questions they wanted put to the detainees in the morning and get answers by the evening. Because torture is illegal in the US, US officials are never present when the torture is done. Further, the CIA only abducts suspects who have already been convicted in absentia. Talaat Fouad Qassem is the first known person the CIA renders to Egypt (see September 13, 1995). But the number of renditions greatly increases in 1998, when the CIA gets a list of Islamic Jihad operatives around the world (see Late August 1998). These renditions result in a big trial in Egypt in 1999 that effectively destroys Islamic Jihad as a major force in that country (see 1999). [New Yorker, 2/8/2005]CIA, NSC, Justice Department Lawyers Consulted - Scheuer will say that lawyers inside and outside the CIA are intensively consulted about the program: “There is a large legal department within the Central Intelligence Agency, and there is a section of the Department of Justice that is involved in legal interpretations for intelligence work, and there is a team of lawyers at the National Security Council, and on all of these things those lawyers are involved in one way or another and have signed off on the procedure. The idea that somehow this is a rogue operation that someone has dreamed up is just absurd.” [Grey, 2007, pp. 140-141]Leadership of Program - The rendition program does not focus solely on al-Qaeda-linked extremists, and other suspected terrorists are also abducted. Scheuer will later tell Congress, “I authored it and then ran and managed it against al-Qaeda leaders and other Sunni Islamists from August 1995, until June 1999.” [US Congress, 4/17/2007 ] A dedicated Renditions Branch will be established at CIA headquarters in 1997 (see 1997), but the relationship between Scheuer and its manager is not known—it is unclear whether this manager is a subordinate, superior, or equal of Scheuer, or whether Scheuer takes on this responsibility as well. After Scheuer is fired as unit chief in May 1999 (see June 1999), his role in the rendition program will presumably be passed on to his successor, Richard Blee, who will go on to be involved in rendition after 9/11 (see Shortly After December 19, 2001). In a piece apparently about Blee, journalist Ken Silverstein will say that he “oversaw… the [Counterterrorist Center] branch that directed renditions.” [Harper's, 1/28/2007]

President Bill Clinton signs Presidential Decision Directive 39 (PDD-39) approving a rendition program recently proposed by the CIA (see Summer 1995). This program is the development of an earlier idea also approved by Clinton (see 1993) and comes two months after the bombing of a government building in Oklahoma City (see 8:35 a.m. - 9:02 a.m. April 19, 1995). The rendition program as approved by Clinton explicitly covers renditions of fugitives to the US to face trial: “When terrorists wanted for violation of US law are at large overseas, their return for prosecution shall be a matter of the highest priority and shall be a continuing central issue in bilateral relations with any state that harbors or assists them.” The directive does not require the foreign government’s consent: “Return of suspects by force may be effected without the cooperation of the host government.” Third Countries - The 9/11 Commission will later point out that this directive also expressly approves transferring suspects to other countries: “If extradition procedures were unavailable or put aside, the United States could seek the local country’s assistance in a rendition, secretly putting the fugitive in a plane back to America or some third country for trial.” Implications - In 2007, journalist Stephen Grey will comment on the policy’s implications: “In essence, the US government chose to outsource its handling of terrorists because neither Clinton nor his Republican opponents were prepared to establish a proper legal framework for the US to capture, interrogate, and imprison terrorists itself; nor to take the more direct military or diplomatic action required to eliminate the leadership of al-Qaeda in Afghanistan; nor to confront countries like Saudi Arabia or Pakistan whose policies helped encourage the growth of terrorism; nor to strengthen adequately the CIA’s own key capabilities.” [Grey, 2007, pp. 121, 123]

Diplomats at the US embassy in Egypt are not informed of the CIA’s rendition program. At this time the program is primarily aimed at locating enemies of the Egyptian regime and bringing them back to Egypt, where they are tortured (see Summer 1995 and Before Summer 1995). The only exception to this is US ambassador to Egypt Edward Walker, who is read into the CIA program although he is actually a State Department employee. One of the diplomats’ jobs is to report on Egypt’s extremely poor human rights record, including its torture methods. Walker will later comment, “It wasn’t a question of mincing words… I think the human rights reports were correct.” He will add that there are Chinese walls at the embassy to keep the CIA program secret from the diplomats: “The walls were huge and they only come together at the ambassador level… [The diplomats working on human rights] might have been a little upset if they knew what was going on.” [Grey, 2007, pp. 126]

The CIA and Albanian intelligence recruit an informer knowledgeable about al-Qaeda in the Balkans. The informer, whose name is Hassan Mustafa Osama Nasr, but is known as Abu Omar, is recruited by a special unit of the Albanian National Intelligence Service (ShIK) created at the behest of the CIA. An officer in the unit, Astrit Nasufi, will say that the unit is actually run by a CIA agent known as “Mike” who is based on the US embassy in Tirana, Albania, and who teaches them intelligence techniques. The CIA and ShIK are worried about a possible assassination attempt against the Egyptian foreign minister, who is to visit Albania soon, so about twelve radical Egyptians, members of Al-Gama’a al-Islamiyya and Islamic Jihad, are detained beforehand. Nasr is not on the list, but is detained because of a link to a suspect charity, the Human Relief and Construction Agency (HRCA). He is held for about 10 days and, although he initially refuses to talk, ShIK has a “full file” on him after a week. He provides information about around ten fellow Al-Gama’a al-Islamiyya members working for HRCA and two other charities, the Al-Haramain Islamic Foundation and the Revival of Islamic Heritage Society, both of which will be declared designated supporters of terrorism after 9/11. However, he says there are no plans to kill the Egyptian foreign minister, as this would mean Albania would no longer be a safe haven for fundamentalist Muslims. The intelligence Nasr goes on to provide is regarded as good quality and includes the identities of operatives monitoring the US embassy and entering and leaving Albania. The CIA is most interested in monitoring former mujaheddin joining the Bosnian Muslims, and Nasr also provides intelligence on Al-Gama’a al-Islamiyya branches in Britain, Germany, and Italy, in particular the Islamic Cultural Institute in Milan, which is a base for mujaheddin operations in the Balkans and is raided by the Italian government around this time (see Late 1993-December 14, 1995). Even though cooperation appears to be good, after a few weeks Nasr suddenly disappears and the CIA tells ShIK that Nasr has moved to Germany. [Chicago Tribune, 7/2/2005] Nasr will later surface in Italy and will become close to Islamic militants in Milan (see Summer 2000), but will be kidnapped by the CIA after 9/11 (see Noon February 17, 2003).

Talaat Fouad Qassem, 38, a known leader of the Al-Gama’a al-Islamiyya (the Islamic Group), an Egyptian extremist organization, is arrested and detained in Croatia as he travels to Bosnia from Denmark, where he has been been living after being granted political asylum. He is suspected of clandestine support of terrorist operations, including the 1993 World Trade Center bombing (see February 26, 1993). He also allegedly led mujaheddin efforts in Bosnia since 1990 (see 1990). In a joint operation, he is arrested by Croatian intelligence agents and handed over to the CIA. Qassem is then interrogated by US officials aboard a US ship off the Croatian coast in the Adriatic Sea and sent to Egypt, which has a rendition agreement with the US (see Summer 1995). An Egyptian military tribunal has already sentenced him to death in absentia, and he is executed soon after he arrives. [Associated Press, 10/31/1995; Washington Post, 3/11/2002, pp. A01; Mahle, 2005, pp. 204-205; New Yorker, 2/8/2005] According to the 1999 book Dollars for Terror, two weeks before his abduction, Qassem was in Switzerland negotiating against Muslim Brotherhood leaders. Some Muslim Brotherhood exiles were negotiating with the Egyptian government to be allowed to return to Egypt if they agreed not to use Muslim Brotherhood Swiss bank accounts to fund Egyptian militant groups like Al-Gama’a al-Islamiyya, but Qassem and other radicals oppose this deal. So the removal of Qassem helps the Muslim Brotherhood in their conflict with more militant groups. [Labeviere, 1999, pp. 70-71]

Bojinka plotter Wali Khan Amin Shah is arrested in Malaysia and rendered to the US.
Shah had been on the run in Asia for almost a year, since escaping a Philippine jail (see January 13, 1995). He is missing three fingers on his left hand, and someone notices this and alerts the authorities. [Ressa, 2003, pp. 43] The FBI had hunted him through around half a dozen countries. After his arrest by Malaysian authorities, at the FBI’s request, he is rendered to the US. He will later be given a long prison sentence for his role in the Bojinka plot. [New York Times, 12/13/1995; Lance, 2004, pp. 326-7; Grey, 2007, pp. 245] Before his arrest, leading Southeast Asian militant Hambali had supplied Khan with a new identity and cover in Malaysia, where he lived on the resort island of Langkawi using the alias Osama Turkestani. However, a 2002 article will say that officials claim they only learn this “years later.” [Los Angeles Times, 2/7/2002]

The War Crimes Act (HR 3680) becomes Public Law No: 104-192. It prohibits Americans—top officials and soldiers alike—from committing “grave breaches” of the Geneva Conventions. It states: “Whoever, whether inside or outside the United States, commits a grave breach of the Geneva Conventions,” provided that the perpetrator or the victim is a member of the US military or a national of the US, “shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.” [Newsweek, 11/5/2001]

Tsutomu Shirosako, a member of the Japanese Red Army, is turned over to US authorities in Nepal and rendered to the US. On May 14, 1986, Shirosako had fired a mortar at the US embassy in Jakarta, Indonesia, but the projectiles had failed to explode. He will be found guilty on all charges, including attempted murder of US embassy personnel and attempting to harm a US embassy, by a federal court in Washington, DC, and will be sentenced to 30 years in jail. [US Department of State, 4/1998; Grey, 2007, pp. 245]

A Renditions Branch is established at the CIA’s Counterterrorist Center. Its job is to find militant leaders and then assist their abduction. The US government has been rendering suspects for four years (see 1993), and the CIA has had a dedicated program for this since the summer of 1995 (see Summer 1995). [9/11 Commission, 7/24/2004, pp. 276] Although some specific rendition operations are known (see Summer 1998, July 1998-February 2000, and Late August 1998), the total before 9/11 is not. Estimates vary, but generally fall into a similar range: Citing a public statement by CIA Director George Tenet, 9/11 commission deputy executive director Chris Kojm will say “70 terrorists were rendered and brought to justice before 9/11;” Shortly after this, Tenet himself will confirm there were “over 70” renditions; [9/11 Commission, 3/24/2004] Tenet will also say “many dozen” suspects were rendered before 9/11; [Central Intelligence Agency, 3/24/2004] The 9/11 Congressional Inquiry will say that the Branch is involved in “several dozen” renditions before 9/11; [US Congress, 7/24/2003, pp. 728 ] Michael Scheuer, a CIA manager responsible for operations against Osama bin Laden, will say that between 1995 and May 1999 “[t]he operations that I was in charge of concerned approximately 40 people…” [CounterPunch, 7/1/2006]

Mir Aimal Kasi, an Islamic militant who killed two CIA officers and wounded another three in 1993 (see January 25, 1993), is arrested in Pakistan by a joint US-Pakistani team. Betrayal - The capture is a result of reward money offered for information about him. After the shooting, Kasi hid in Pakistan, where he was protected by a local tribal leader. However, the leader decides he would like the reward money, and sends an emissary to the US consulate in Karachi, where he speaks to the FBI and provides evidence the leader can deliver Kasi. Pakistan’s ISI agrees to help and the three agencies send representatives to the town of Dera Ghazi Khan. [Coll, 2004, pp. 374-5; Associated Press, 12/27/2005] The town is in the Punjab, in central Pakistan. [Columbia Encyclopaedia, 2007] The tribal leader lures Kasi there and he is captured by the joint team, then rendered to the US. Tenet's Reaction - CIA Director George Tenet calls hundreds of the agency’s staff together to celebrate the operation, declaring, “No terrorist should sleep soundly as long as this agency exists,” and encouraging employees to “have a cocktail before noon.” [Coll, 2004, pp. 374-5; Associated Press, 12/27/2005]Reason for Rendition - National Security Council official Daniel Benjamin will explain why Kasi and Bojinka plotter Ramzi Yousef (see February 7, 1995) are not extradited in the normal manner, but rendered: “Both were apprehended in Pakistan, whose leaders decided that the nation would rather not have those two—folk heroes to some—sitting in jail, awaiting extradition. Pakistan’s leaders feared that cooperating with the United States would be dangerously unpopular, so they wanted the suspects out of the country quickly.” [Washington Post, 10/21/2007]

The CIA significantly expands its paramilitary capacity under new Director George Tenet (see July 11, 1997). The agency had a large paramilitary arm that had been used during the 1960s and 1970s, for example in Vietnam, but the capacity was wound down following scandals at the end of the 1970s implicating the CIA in assassinations and torture. However, at some point in the late 1990s the CIA again begins to enlarge its paramilitary unit, known as the Special Operations Group (SOG). [Time, 12/10/2001; Time, 2/3/2003] The SOG becomes involved in the CIA’s rendition program. [Grey, 2007, pp. 142]

Walter Schumm, an Army Reserve colonel, writes a piece in the Military Review making the observation that few military officers understand the legal requirements for handling prisoners. In one part of the essay he notes, “It only takes one improperly trained soldier among a thousand to commit an offense against the Geneva Conventions that would cause our nation considerable embarrassment.” [USA Today, 5/13/2004]

The US enacts a law banning torture or abuse by any government official or employee. Title 18 of the US Code, Chapter 113C, Section 2340 bans US officials anywhere in the world from intentionally inflicting “severe physical or mental pain or suffering” upon another person in their control. Violation of this statute would earn the convicted official up to 20 years in prison; if a detainee dies as a result of the abuse, the convicted official can be sentenced to death. Any American official who conspires to have a prisoner abused is subject to the same penalties. [Legal Information Institute, 1/26/1998; Savage, 2007, pp. 155]

A joint surveillance operation conducted by the CIA and Albanian intelligence identifies an Islamic Jihad cell that is allegedly planning to bomb the US Embassy in Tirana, Albania’s capital. The cell was created in the early 1990s by Mohammed al-Zawahiri, brother of Islamic Jihad and al-Qaeda leader Ayman al-Zawahiri. The operation intercepts lengthy discussions between the cell and Ayman. [New Yorker, 2/8/2005; Wright, 2006, pp. 269] At the behest of the US government, Egypt, which is co-operating with the US over renditions (see Summer 1995), issues an arrest warrant for Shawki Salama Attiya, one of the militants in the cell. Albanian forces then arrest Attiya and four of the other suspected militants. A sixth suspect is killed, but two more escape. The men are taken to an abandoned airbase, where they are interrogated by the CIA, and then flown by a CIA-chartered plane to Cairo, Egypt, for further interrogation. The men are tortured after arriving in Egypt: Ahmed Saleh is suspended from the ceiling and given electric shocks; he is later hanged for a conviction resulting from a trial held in his absence; Mohamed Hassan Tita is hung from his wrists and given electric shocks to his feet and back; Attiya is given electric shocks to his genitals, suspended by his limbs and made to stand for hours in filthy water up to his knees; Ahmed al-Naggar is kept in a room for 35 days with water up to his knees, and has electric shocks to his nipples and penis; he is later hanged for an offence for which he was convicted in absentia; Essam Abdel-Tawwab will also describe more torture for which prosecutors later find “recovered wounds.” On August 5, 1998, a letter by Ayman al-Zawahiri will be published that threatens retaliation for the Albanian abductions (see August 5, 1998). Two US embassies in Africa will be bombed two days later (see 10:35-10:39 a.m., August 7, 1998). [Washington Post, 3/11/2002, pp. A01; New Yorker, 2/8/2005; Grey, 2007, pp. 128] The US State Department will later speculate that the timing of the embassy bombings was in fact in retaliation for these arrests. [Ottawa Citizen, 12/15/2001]

Mohammed Rashid, alleged to have bombed a Pan Am flight from Tokyo to Honolulu killing one person and wounding fifteen more in 1982, is rendered from Egypt to the US. He faces a nine-count indictment including charges of murder, sabotage, bombing, and other crimes in connection with the Pan Am explosion. Rashid had served part of a prison term in Greece in connection with the bombing until the Greeks released him from prison early and expelled him in December 1996, in a move the US government called “incomprehensible.” [US Department of State, 4/1999; Grey, 2007, pp. 246]

In February 2000, CIA Director George Tenet testifies to Congress, “Since July 1998, working with foreign governments worldwide, we have helped to render more than two dozen terrorists to justice. More than half were associates of Osama bin Laden’s al-Qaeda organization.” Renditions are a policy of grabbing a suspect off the street of one country and taken the person to another where he was wanted for a crime or questioning without going through the normal legal and diplomatic procedures. [Associated Press, 12/27/2005] The CIA had a policy of rendering Islamic Jihad suspects to Egypt since 1995 (see Summer 1995). In July 1998, the CIA discovered a laptop containing organizational charts and locations of al-Qaeda and Islamic Jihad operatives, so presumably these renditions are a direct result of that intelligence find (see Late August 1998).

Essam Marzouk. [Source: Public domain]In mid-August 1998, the Mossad intercepts a phone call indicating that an Egyptian militant named Ihab Saqr is planning to meet an Iranian intelligence agent in a hotel in Baku, Azerbaijan, in one week’s time. Saqr is believed to be Ayman al-Zawahiri’s chief of staff. The Mossad is very interested in the Iranian connection but they have no presence in Azerbaijan, so they contact the CIA. The CIA leads a capture operation, with one Mossad agent, Michael Ross, also in attendance. The CIA captures Saqr and two men he is meeting with, but neither of them turn out to be Iranian. The other men are Essam Marzouk and Ahmad Salama Mabruk. Marzouk is an al-Qaeda explosives expert who has just trained the men who bombed two US embassies in Africa earlier in the month. He had been living in Canada and Canadian intelligence has long been suspicious about his militant ties. Mabruk is a known member of Islamic Jihad’s ruling council. The US quickly renditions Saqr, Marzouk, and Mabruk to Egypt. Marzouk is sentenced to 15 years in prison, Mabruk is sentenced to life in prison, and Saqr’s fate in Egypt is unknown. [National Post, 10/15/2005; Ross and Kay, 2007, pp. 214-224] The US discovers a treasure trove of information about al-Qaeda and Islamic Jihad in Mabruk’s laptop (see Late August 1998). But it is unclear why the US was seemingly in the dark and only arresting these figures by chance, because US intelligence had long been monitoring calls between Osama bin Laden and Mabruk in Baku (see November 1996-Late August 1998). Furthermore, Canadian intelligence had also monitored many calls between Mabruk and an Islamic Jihad operative in Canada. (Note that some accounts place the timing of this capture in July 1998, but Canadian intelligence is monitoring Mabruk’s communications up through and after the embassy bombings in August (see August 5-7, 1998 and August 8, 1998 and Shortly After).)

The CIA drafts a new plan to combat al-Qaeda. The document, entitled “The Plan,” has several elements: Continue with the CIA’s rendition program, which had begun some time previously (see Summer 1995); Continue with disruption operations against al-Qaeda; Hire and train better officers with counterterrorism skills; Recruit more assets and try to penetrate al-Qaeda’s ranks; Close gaps in the collection of signals and imagery intelligence; Increase contacts with the Northern Alliance (see Summer 1999). [9/11 Commission, 7/24/2004, pp. 142]

The US deports Hani El-Sayegh, a Saudi National who is a suspect in the 1996 Khobar Towers bombing (see June 25, 1996), back to Saudi Arabia. [Grey, 2007, pp. 247] The deportation is approved by a US judge. [Washington Post, 10/29/2000]History - In 1996, el-Sayegh, who had been living in Iran, moved to Kuwait. He later went to Canada, where he cut a deal with American officials that called for him to plead guilty in an unrelated plot against Americans in Saudi Arabia that was never carried out. In 1997, Canada expelled el-Sayegh for suspected terrorist activity. Attorney General Janet Reno allowed him into the United States solely for prosecution under the pact. But after arriving, he said he had not understood the accord, knew nothing about the Khobar attack, and was out of Saudi Arabia when the bombing occurred. Despite this, the Saudis suspected him of being present at the bombing and his brother was held in connection with it, and allegedly tortured in a Saudi jail. [New York Times, 10/12/1999]Agreement - The deportation follows an agreement between FBI Director Louis Freeh and Prince Naif, Saudi Arabia’s interior minister. Under the agreement, el-Sayagh is returned to Saudi Arabia, and, according to officials familiar with the arrangement, FBI agents will be allowed to watch his interrogation through a one-way mirror and submit questions to his Saudi inquisitors. Washington Post journalist David Vine will comment, “Such practices are sharply at odds with Freeh’s oft-stated message about the FBI’s need to respect human dignity and the tenets of democracy while fighting crime.” Although FBI officials will say a year later they have not seen any indication that el-Sayegh has been tortured, Vine will add, “But agents say privately that when entering a foreign culture to do police work they do not have control over how prisoners are treated and must tread lightly.” [Washington Post, 10/29/2000]Khobar Towers Attack Could Have Been Prosecuted in US - The Khobar Towers attacks may have been in Saudi Arabia, but were against US nationals, so suspects can be prosecuted in the US. Tony Karon of Time magazine will express surprise at the deportation: “Run that one by again: The United States doesn’t want to try a man suspected of a bomb attack that killed Americans—and they’re sending him home?!” However, the Justice Department apparently thinks there is not enough evidence to try him in the US, and, according to Time correspondent William Dowell, “Clearly, there’s a lower standard of proof in Saudi courts,” so, “It may be easier for Washington if the Saudis handle the trial—and the execution, which would likely follow.” Possible Geopolitical Motive - According to Karon, an alternative explanation is that geopolitics may be behind the decision: “Sending el-Sayegh… back to Saudi Arabia could solve another touchy problem for Washington.” This is because President Clinton said the US would retaliate against any government that was involved in the attacks, and an Iranian hand is suspected in the bombing. However, according to Time Middle East bureau chief Scott Macleod: “the attack occurred before the election of President Khatami, who has clearly demonstrated a commitment to end state terrorism and normalize Iran’s relations with the rest of the world. Given Washington’s desire to strengthen his reformist government against its hard-line opponents, the US would be unlikely to take military action against Iran unless there were fresh acts of terrorism.” [Time, 10/5/1999]

Hussein al-Zawahiri, brother of al-Qaeda second in command Ayman al-Zawahiri, is rendered to Egypt. Hussein, an engineer, is captured in Malaysia, although, according to author Stephen Grey, he has “no known involvement with terrorism,” other than his familial link. Nevertheless, the CIA takes him back to Egypt, where he is interrogated for six months. He will be released in 2000, but, according to Grey, “Years later he remained effectively under house arrest, banned from any contact with anyone but his family.” [Grey, 2007, pp. 129, 247]

A presentation by the CIA’s Counterterrorist Center to the National Security Council’s Small Group emphasizes the importance of rendition operations in the CIA’s fight against al-Qaeda. The briefing says: “We will continue with disruptions of operations and renditions… but with an increased emphasis on recruiting sources; at this time, we have no penetrations inside [Osama bin Laden]‘s leadership.” [US Congress, 7/24/2003, pp. 388 ] The Small Group was formed by National Security Adviser Sandy Berger and includes members of Clinton’s cabinet cleared to know about the most sensitive counterterrorism issues. [9/11 Commission, 7/24/2004, pp. 120]

Mohammed al-Zawahiri, brother of al-Qaeda second-in-command Ayman al-Zawahiri, is arrested at Dubai airport in the United Arab Emirates (UAE). While much less known than his brother, Mohammed quietly served an important role as Ayman’s deputy in Islamic Jihad, and as the group’s military commander (see 1993). He apparently disagreed with the increasing unification between Islamic Jihad and al-Qaeda, and quit in 1998 over that issue. [Jacquard, 2002, pp. 108] He is arrested in the UAE and then flown to Egypt as a part of the CIA’s rendition program (see Summer 1995). A senior former CIA officer will later confirm US involvement in the operation. [Grey, 2007, pp. 246, 299] Mohammed had been sentenced to death in absentia in Egypt the year before. [New Yorker, 9/9/2002] But his execution is not carried out, and he is said to reveal what he knows about Islamic Jihad. In 2007 it will be reported that his sentence is likely to be lessened in return for agreeing to renounce violence. [Jacquard, 2002, pp. 108; Associated Press, 4/20/2007] Note: there is a dispute about when he was arrested. Some sources indicate it was in the spring of 1999. [Grey, 2007, pp. 246; Associated Press, 4/20/2007] Others indicate it was a year later. [Jacquard, 2002, pp. 108; New Yorker, 9/9/2002]

The FBI extracts a full confession from L’Houssaine Kherchtou, also known as “Joe the Moroccan,” a member of the cell that bombed the US embassy in Nairobi, Kenya (see Late 1993-Late 1994 and 10:35-10:39 a.m., August 7, 1998). However, in contrast with methods used on al-Qaeda operatives after 9/11, he is not tortured and the FBI is at pains to treat him well. Relaxing Surroundings, Respectful Treatment - FBI agent Jack Cloonan will later say of the initial interrogation, which took place in Morocco, “The setting was beautiful, it was this grand house with stables out back, gazelles bouncing in the background, palm trees, three-course meals.” Kherchtou had a relationship with the British intelligence service MI6 (see Mid-Summer 1998 and Shortly After August 7, 1998), but had broken off contact with it and has to be lured to Morocco, where his debriefing is headed by Patrick Fitzgerald. Cloonan will later describe the questioning: “We advised [Kherchtou] of his rights. We told him he could have a lawyer anytime, and that he could pray at any time he wanted. We were letting the Moroccans sit in on this, and they were dumbfounded.… The Moroccans said he’d never talk. He never shut up for 10 days.” Fitzgerald denies Kherchtou a plea bargaining agreement, and says he must plead guilty to conspiracy to murder, for which he may receive a life sentence, though Fitzgerald promises to ask the judge for leniency. However, Cloonan will later say, “His wife needed money for medical treatment in Khartoum, and al-Qaeda had failed to provide it.” It is Cloonan’s “in” with Kherchtou, who is also sure that the US will not torture him. When Kherchtou wavers, Cloonan steps in. As he recalls: “I said, ‘Joe, you understand English, so I’d like you to go out and pray on this with your two Moroccan brothers.’ I thought Fitzy was going to give birth. Joe went out and prayed and came back and said yes.” He provides the FBI with details of the plot and becoming a star witness at the trial (see September 2000). [American Prospect, 6/19/2005; Vanity Fair, 12/16/2008]Invaluable Information - Kherchtou’s information, provided at a time when the US knows comparatively little about al-Qaeda, is, in Cloonan’s assessment, invaluable. “He told us about a lot of things,” Cloonan later says. “We learned how they recruited people, their front organizations, how they used NGOs [non-governmental organizations], false passports, what they thought about kidnapping, how they developed targets, did their surveillance, a day in the life of Osama bin Laden, what weapons they used, what vehicles they drove, who was the principal liaison with the Sudanese government, that there was a relationship between al-Qaeda and Hezbollah, how they did their training exercises, their finances, and their membership.” After the trial, he enters the witness protection program in the US. Four of his onetime associates will receive life sentences as a direct result of his information. [Vanity Fair, 12/16/2008]FBI Use Kherchtou as Example of Successful Interrogation Tacticss - FBI officials will later compare this outcome favorably to procedures used by other US agencies after 9/11. For example, following the detainee abuse scandals after 9/11, FBI manager Tom Harrington will write that the FBI has “been successful for many years obtaining confessions via non-confrontational interviewing techniques.” Cloonan will later contrast Kherchtou’s treatment with that of al-Qaeda training manager Ibn al-Shaykh al-Libi in December 2001, when the US sent al-Libi to Egypt to be tortured and interrogated, but some of the information he provided there turned out to be false (see December 19, 2001 and January 2002 and After). [American Prospect, 6/19/2005]

Hassan Mustafa Osama Nasr. [Source: ABC]Italian resident Hassan Mustafa Osama Nasr, who previously informed for the CIA on extremists in Albania (see August 27, 1995 and Shortly After and May 1997-2000), moves from Rome to Milan to live with a close associate of al-Qaeda second-in-command Ayman al-Zawahiri (see Before Spring 2000 and Summer 2000). Al-Zawahiri’s associate, Mahmoud Es Sayed, and Nasr arrive in Milan at the same time, and it appears their movements are coordinated. Nasr actually lives in Es Sayed’s apartment and the pair make use of two radical mosques in Milan, the Via Quaranta mosque, which is their headquarters, and the Islamic Cultural Institute (ICI), which is associated with a cell of radical Islamists that works with al-Qaeda and appears to have foreknowledge of 9/11 (see August 12, 2000 and March 2001). The ICI has a reputation as the most radical Islamic center in Italy, was a key supply point for Muslims fighting in Bosnia (see Late 1993-December 14, 1995), and was connected to the first World Trade Center bombing (see Late 1993-1994). Nasr serves as deputy imam at the ICI and preaches anti-US sermons. Italian law enforcement authorities monitor him with bugs in his apartment and through a tap on his phone, finding out that after 9/11 he recruits Muslims to go and fight in Afghanistan. He does not seem to be directly involved in serious illegal activity, but the information the Italians gain helps them monitor other radicals. His relationship with the CIA during his time in Italy is unclear, but in one monitored call after 9/11 he appears to be dissuading another radical from attacking Jews and in another he tells an associate not to carry out a car bombing. [Chicago Tribune, 7/2/2005; Vidino, 2006, pp. 242] The CIA will kidnap Nasr in 2003 (see Noon February 17, 2003).

Jose Padilla, an American Muslim who has recently become interested in becoming an al-Qaeda fighter, attends an al-Qaeda training camp in Afghanistan. He goes under the name Abdullah al-Espani. [Associated Press, 6/2004]

Yemeni national Abdul Rahman Muhammad Nasir Qasim al-Yaf’i is imprisoned in Egypt after arriving there to accompany his aunt and brother for medical treatment. He is detained for 13 hours at the airport after he admits going to Afghanistan 10 years ago, and his passport is confiscated. Detained in Egypt - He later returns to the airport for his passport, but is handcuffed, blindfolded, and taken away by the police. He is placed in a tiny cell and told the authorities just want “some general information.” During the interrogation, he is called names and made to stand up and sit down over and over again. He is asked about what he did in Afghanistan, as well as about al-Qaeda-linked attacks over the last four years. The interrogators choke him, insulting his parents, wife, and religion. He is interrogated like this three times a day for four days. Interrogators ask him to work with them, and offer to put his aunt and brother in the “finest hospitals in Cairo.” He refuses, and they tell him he will now be turned over to the US. Rendered to Jordan - He is returned to the airport, where he boards a waiting plane. According to al-Yaf’i, the plane is “full of military, you could feel the presence of military even if it was a civilian plane.” He is flown to Amman, Jordan, and handed over to the Jordanian authorities, who again torture him. He is handcuffed, blindfolded, and told to write down everything that happened in Egypt. After he finishes, the interrogators keep asking him “do you love Osama bin Laden?” They also beat him and force him to stand in his cell for more than 24 hours without sleep. The next evening, the soles of his feet are beaten with a stick until it breaks. The interrogators continually urge him to confess, although it is unclear what he is supposed to confess to. They also say, “We’re going to kill you and bury you here,” and threaten him with rape multiple times. This continues for four months, during which time his family and tribe have no idea where he is. Freed through Tribal Pressure - In March 2001, al-Yaf’i is flown to Yemen and handed over to the local authorities there. Upon his return, he is held for two months at the Political Security prison, but is not beaten. When he asks why he is being held, the reply is “American pressure.” Over half a year after initially being taken prisoner, he is released. He will later ascribe this to intervention by elders in his tribe. [International, 4/5/2006]

George W. Bush taking the oath of office. [Source: White House/ Wally McNamara]George W. Bush is inaugurated as president, replacing President Bill Clinton. Bush is sworn in after a tumultuous, sharply disputed election that ended with a US Supreme Court decision in his favor (see 9:54 p.m. December 12, 2000). He takes the oath of office on the same Bible his father, George H.W. Bush, used in his own 1989 inauguration; the oath is administered by Chief Justice William Rehnquist. In his brief inaugural address, delivered outside the US Capitol, Bush asks Americans to “a commitment to principle with a concern for civility.… Civility is not a tactic or a sentiment. It is the determined choice of trust over cynicism, of community over chaos.” In words apparently chosen to reflect on the criticisms surrounding former President Clinton and his notorious affair with White House intern Monica Lewinsky, Bush says, “I will live and lead by these principles—to advance my convictions with civility, to pursue the public interest with courage, to speak for greater justice and compassion, to call for responsibility, and try to live it as well.” He continues addressing the American people, saying: “I ask you to be citizens. Citizens, not spectators. Citizens, not subjects. Responsible citizens, building communities of service and a nation of character.” At a post-ceremonial luncheon, Bush issues a series of executive orders, some designed to block or roll back several Clinton-era regulations. He also acknowledges that because of the election turmoil, many Americans believe “we can’t get anything done… nothing will happen, except for finger-pointing and name-calling and bitterness.” He then says: “I’m here to tell the country that things will get done. Republicans and Democrats will come together to do what’s right for America.” [New York Times, 1/21/2001]Thousands of Protesters - Thousands of protesters line the streets during Bush’s ceremonial drive to the Capitol, a fact not heavily reported by many press outlets. Salon reports, “Not since Richard Nixon paraded down Pennsylvania Avenue in 1973 has a presidential inauguration drawn so many protesters—and last time, people were out to protest the Vietnam War.” Though Capitol Police refuse to estimate the size of the crowd lining the street, Salon reports that “many thousands of protesters were in evidence.” Liz Butler of the Justice Action Movement, the umbrella organization that helped coordinate the protests, says: “The level of people on the streets shows that people are really upset about lack of democratic process. They took it to the streets. We saw tens of thousands. We saw far more protesting Bush than supporting him.” Some of the people on the streets are Bush supporters, but many more are not, and carry signs such as “Bush Cheated,” “Hail to the Thief,” “Bush—Racism,” “Bushwhacked by the Supremes,” and others. The crowd, though outspoken in its protests and unrestrained in its heckling of Bush and Vice President Dick Cheney, is generally peaceful, and no serious violence is reported, though a few minor altercations do take place, and large contingents of police in riot gear—including personnel from every police department in the District of Columbia as well as the Bureau of Alcohol, Tobacco and Firearms and from departments in Maryland and Virginia—are on hand. At least one protester throws an egg at the limousine transporting Bush, Cheney, and their families to the inaugural ceremonies; perhaps in response to the protests, Bush breaks with tradition laid down by earlier presidents and does not walk any large portion of the parade route. Nine people are arrested for disorderly conduct, most for allegedly throwing bottles and other debris. Bulter says: “Of course, we’re ashamed that Bush has decided to be a ‘uniter’ by uniting people against him. They all chose to come out in the freezing rain—even the weather couldn’t stop these people.” Protester Mary Anne Cummings tells a reporter: “I think it’s important to remind the incoming administration the country does not want a right-wing mandate. They did not vote for a right-wing mandate.” [Salon, 1/20/2001; CNN, 1/20/2001; New York Times, 1/21/2001] Thousands of protesters march in San Francisco, Los Angeles, and other cities as well. [CNN, 1/20/2001]

Binyam Mohamed, a 23-year old Muslim of Ethiopian descent residing in London, flies to Pakistan to experience Islam in its “purest form” as practiced by the Taliban. Mohamed, who was abandoned by his family in London when he was 15, is a former heroin addict and desultory college student who turned to the local mosque as a way to avoid his drug-using friends. He will later claim, “I really had no idea what it was” that the Taliban espoused; he goes to Afghanistan on the advice of some in the mosque. After arriving in Pakistan, he sneaks into Afghanistan in the back of a truck. He will later say that he learns about the Muslim rebels in Chechnya from sympathizers in Jalalabad, and determines to aid the Muslim cause, but, he claims, as an aid worker, not a terrorist or Taliban fighter. Yet he agrees to undergo basic training in Afghanistan for fighters. He will later say: “I was told that the Russians don’t separate between aid workers and those doing the fighting, and that if I wanted to go to Chechnya, I needed basic training. I was so young, I didn’t question it. I didn’t expect to fire a gun except in training, let alone kill someone.… I would never have taken up arms against British or American soldiers, let alone attacked civilians. I wanted to protect civilians, not kill them.” He completes a 45-day “boot camp” course, where, he will later say, he learned nothing to do with terrorism, such as bomb-making techniques. But instead of traveling to Chechnya, he goes to Kabul, where he contracts malaria. He is in the hospital when he learns of the 9/11 attacks. He thinks Afghanistan will soon be under attack from Western forces, and, he will later say, decides to leave for London before the fighting can start (see September 2001 - April 9, 2002). “All I wanted to do was to get back to London, to the country that I thought of as home, to continue my education and find a job; to get back to my life, minus the drugs,” he will say. [Daily Mail, 3/8/2009]

Binyam Mohamed, a young Ethiopian with British citizenry, is in Afghanistan after the 9/11 attacks. He later tells a journalist that he wants nothing more than to leave for London before the West can retaliate against al-Qaeda and the Taliban (see May-September, 2001). But Mohamed is unable to leave before the US-led coalition launches its attacks in November. According to Mohamed, he is caught among the tide of refugees, and in early 2002 makes his way across the Afghan-Pakistan border and into the city of Karachi. On April 3, he books a flight to London, but officials turn him away, saying his passport looks wrong (Mohamed entered the region using a friend’s passport). On April 9, he tries again to book a flight with the same passport, and is detained by Pakistani authorities. This is the beginning of almost seven years of incarceration, interrogation, and torture (see February 24, 2009). [Daily Mail, 3/8/2009] Apparently some of the details of Mohamed’s recollections will differ from the recounting of his story as later told by his lawyer, Clive Stafford Smith.

Ali Saleh Kahlah al-Marri, from Qatar but a legal US resident, arrives in the US with his wife and five children, reportedly to pursue a master’s degree in computer science at Bradley University in Peoria, Illinois. [Peoria Journal Star, 12/19/2001; New York Times, 6/21/2004] Al-Marri appears to have been sent to the US by 9/11 mastermind Khalid Shaikh Mohammed (KSM). During his interrogation, KSM will identify al-Marri as “the point of contact for al-Qaeda operatives arriving in the US for September 11 follow-on operations.” He will describe al-Marri as “the perfect sleeper agent because he has studied in the United States, had no criminal record, and had a family with whom he could travel.” [Newsweek, 6/15/2003] However, there are doubts about the reliability of KSM’s interrogation, which is believed that have been obtained through the use of torture (see June 16, 2004). Al-Marri also lived in Illinois for part of 2000 under a different name. [New York Daily News, 1/11/2003] He is apparently related to Mohamed al-Khatani, who attempted to enter the US in August 2001 to join the 9/11 plot (see July 2002). [New York Times, 6/21/2004] In December 2001, al-Marri will be detained as a material witness to the 9/11 attacks (see December 12, 2001).

During a National Security Council meeting, FBI Director Robert Mueller begins to describe the investigation under way to identify the 9/11 hijackers. According to journalist Bob Woodward, “He said it was essential not to taint any evidence so that if accomplices were arrested, they could be convicted.” But Attorney General John Ashcroft interrupts. Woodward will paraphrase Ashcroft saying, “The chief mission of US law enforcement… is to stop another attack and apprehend any accomplices or terrorists before they hit us again. If we can’t bring them to trial, so be it.” Woodward will comment, “Now, Ashcroft was saying, the focus of the FBI and the Justice Department should change from prosecution to prevention, a radical shift in priorities.” President Bush is at the meeting and apparently does not challenge Ashcroft’s suggestion. [Woodward, 2002, pp. 42-43]

The chief of operations at the CIA’s Counterterrorist Center proposes that the CIA establish “hit teams” to assassinate high-value targets in al-Qaeda’s structure. The CIA compiled a list of such targets before 9/11, and updated it afterwards. The suggestion is made as part of a debate about what to do with the targets. The hit teams would be made up of CIA paramilitaries that would covertly infiltrate countries in the Middle East, Africa, and even Europe to assassinate people on the list, one by one. However, some CIA officers object to this, saying that it would be better to keep the targets alive and interrogate them about their network and other plots. Other officers worry that the CIA might not be good at assassinating people, and the plan is never implemented, although the agency does establish a network of black sites for interrogating detainees. The identity of the chief of operations that makes this proposal is not known definitively, but Richard Blee is said to hold the position around this time (see Between Mid-January and July 2000). [Washington Post, 11/2/2005]

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

One of the main questions on the minds of government lawyers is how to criminally prosecute captured members of al-Qaeda and the Taliban. A few days after 9/11, William P. Barr, a former attorney general, suggests to Timothy E. Flanigan, deputy White House counsel, to use so-called military commissions. Barr first thought of using such military commissions to try the suspects of the bombing of Pan Am Flight 103 over Lockerbie, Scotland, but this was rejected at the time. “I thought it was a great idea,” Flanigan says. [New York Times, 10/24/2004]

In a television interview, Vice President Cheney is asked how the US will respond to the 9/11 attacks. He first replies that there will be a military response. But he adds an oblique comment indicating the secrecy in which he and the administration intend to operate after the 9/11 attacks: “We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.” [Meet the Press, 9/16/2001; Unger, 2007, pp. 221] In 2006, former CIA official Gary Schroen will be asked about Cheney’s comment, and he replies: “My impression at the time was that the administration was trying to send a message, and certainly CIA leadership was trying to send a message, that the gloves were off. I think what [Cheney] was probably saying was, we’re going to do things like assassination operations; we were going to go into places and not try to capture these guys, but just kill them, and that… there would be a lot of people who would object to those kind of tactics.” [PBS Frontline, 1/20/2006] In 2007, author and reporter Charlie Savage will write, “Many interpreted Cheney’s vague remarks to have been a reference to brutal interrogation techniques.” [Savage, 2007, pp. 154]

President Bush signs a directive giving the CIA the authority to kill or capture suspected al-Qaeda members and to set up a global network of secret detention facilities—“black sites”—for imprisoning and interrogating them. [Truthout (.org), 8/27/2004]Secret Prison System - The International Committee of the Red Cross (ICRC) will later call the sites a “hidden global internment network” designed for secret detentions, interrogations, and ultimately, torture. At least 100 prisoners will be remanded to this secret system of “extraordinary rendition.” The network will have its own fleet of aircraft (see October 4, 2001) and relatively standardized transfer procedures. [New York Review of Books, 3/15/2009] The directive, known as a memorandum of notification, will become the foundation for the CIA’s secret prison system. The directive does not spell out specific guidelines for interrogations. [New York Times, 9/10/2006]Secret Assassination List - Bush also approves a secret “high-value target list” containing about two dozen names, giving the CIA executive and legal authority to either kill or capture those on the list (see Shortly After September 17, 2001). The president is not required to approve each name added to the list and the CIA does not need presidential approval for specific attacks. Further, a presidential finding gives the CIA broad authority to capture or kill terrorists not on the list; the list is merely the CIA’s primary focus. The CIA will use these authorities to hunt for al-Qaeda leaders in Afghanistan and elsewhere. [New York Times, 12/15/2002]

President Bush giving his joint session of Congress speech. [Source: Eric Draper / White House]In a speech before a joint session of Congress, President Bush says the US faces a lengthy global war on terrorism. He says, “On September 11, enemies of freedom committed an act of war against our country.… Our war on terror begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated.” "Hand Over the Terrorists" or "Share in Their Fate" - He says to the Taliban: “Deliver to United States authorities all the leaders of al-Qaeda who hide in your land. Release all foreign nationals, including American citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats and aid workers in your country. Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist, and every person in their support structure, to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating. These demands are not open to negotiation or discussion. The Taliban must act, and act immediately. They will hand over the terrorists, or they will share in their fate.” "Either You Are with Us, or You Are with the Terrorists" - “Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen.… We will starve terrorists of funding, turn them one against another, drive them from place to place, until there is no refuge or no rest. And we will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.” "They Hate Our Freedoms" - “Americans are asking, why do they hate us? They hate what we see right here in this chamber—a democratically elected government. Their leaders are self-appointed. They hate our freedoms—our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.… These terrorists kill not merely to end lives, but to disrupt and end a way of life.… They are the heirs of all the murderous ideologies of the 20th century. By sacrificing human life to serve their radical visions—by abandoning every value except the will to power—they follow in the path of fascism, and Nazism, and totalitarianism.” "Every Resource" Will Be Used - “We will direct every resource at our command—every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war—to the disruption and to the defeat of the global terror network.” "Live Your Lives" - Bush has surprisingly little to specifically ask of the ordinary citizen. “Americans are asking: What is expected of us? I ask you to live your lives, and hug your children.… I ask you to be calm and resolute, even in the face of a continuing threat.… I ask you to uphold the values of America, and remember why so many have come here.… I ask you to continue to support the victims of this tragedy with your contributions.… I ask for your patience, with the delays and inconveniences that may accompany tighter security; and for your patience in what will be a long struggle.… I ask your continued participation and confidence in the American economy.” [US President, 9/24/2001]

Tarek Dergoul, a British national of Pakistani descent and a former London care worker, travels to Afghanistan with two Pakistani friends shortly after 9/11. They intend to invest in housing, so he claims, which they think will become scarce as soon as the impending US attacks cause refugees. “The plan,” according to Dergoul, “was to buy some property away from where the bombing was. We thought we could buy it very cheap; then sell it at a profit after the war.” [Observer, 5/16/2004]

In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, Justice Department lawyer John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the US Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual’s liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004] A month later, the Justice Department will issue a similar memo (see October 23, 2001).

Less than two weeks after 9/11, White House counsel Alberto Gonzales sets up an interagency group to design a strategy for prosecuting terrorists, and specifically asks it to suggest military commissions as one viable option for prosecution of suspected terrorists. Membership - The initial participants include Gonzales; White House lawyer Timothy Flanigan; Pentagon general counsel William Haynes; the vice president’s chief counsel, David Addington; National Security Council lawyer John Bellinger; and State Department lawyer Pierre-Richard Prosper, a former career prosecutor who now serves as State’s ambassador at large for war crimes issues and who will head the group. Various Options - The group spends a month in a windowless conference room at State, bringing in experts from around the government, including military lawyers and Justice Department lawyers. The Justice Department advocates regular trials in civilian courts, such as the trials of the 1993 World Trade Center bombers (see February 26, 1993). However, many in the group object, noting that terrorist trials in regular courthouses on US soil pose security risks. The military lawyers propose courts-martial, which can take place anywhere in the world and would have military protection. A third option, military commissions, would offer the security of courts-martial without the established rules of evidence and procedure courts-martial have; setting up such a system might offer more flexibility in trying suspected terrorists, but many in the group wonder if President Bush would require Congressional authorization. Prosper will later recall, “We were going to go after the people responsible for the attacks, and the operating assumption was that we would capture a significant number of al-Qaeda operatives.” In addition to the use of military commissions, the group begins to work out three other options: ordinary criminal trials, military courts-martial, and tribunals with a mixed membership of civilians and military personnel. The option of a criminal trial by an ordinary federal court is quickly brushed aside for logistical reasons, according to Prosper. “The towers were still smoking, literally. I remember asking: Can the federal courts in New York handle this? It wasn’t a legal question so much as it was logistical. You had 300 al-Qaeda members, potentially. And did we want to put the judges and juries in harm’s way?” Despite the interagency group’s willingness to study the option of military commissions, lawyers at the White House, according to reporter Tim Golden, grow impatient with the group. Some of its members are seen to have “cold feet.” [New York Times, 10/24/2004; Savage, 2007, pp. 135]Parallel Process at White House - Unbeknownst to Prosper’s group, the White House is crafting its own version of military commissions or tribunals (see Late October 2001). When President Bush issues his executive order creating military tribunals
(see November 13, 2001), Prosper and his group will first learn about it by watching the nightly news. [Savage, 2007, pp. 138]

A Yemeni name Jamal Mohamed Alawi Mar’i is arrested in Karachi, Pakistan, on September 23, 2001. He is accused of working for the Wafa Humanitarian Organization, which the US will officially ban the next day (see September 24, 2001). He is handed over to US officials, who fly him to Jordan by the end of the month. He is held there for four months and then transferred to the Guantanamo prison. He is possibly the first post-9/11 US rendition. [Grey, 2007, pp. 280]

John Yoo. [Source: University of California, Berkeley]In a secret 15-page memo to Deputy White House Counsel Timothy Flanigan, Justice Department lawyer John Yoo, a deputy in the Office of Legal Counsel, reasons that it is “beyond question that the president has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks” of 9/11. Those actions can be extensive. “The president may deploy military force preemptively against terrorist organizations or the states that harbor or support them,” Yoo writes, “whether or not they can be linked to the specific terrorist incidents of Sept. 11.… Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon.” The memo is solicited and overseen by White House lawyers. Power Derives from Constitution, Congressional Authorization for War - This power of the president, Yoo states, rests both on the US Congress’ Joint Resolution of September 14 (see September 14-18, 2001) and on the War Powers Resolution of 1973. “Neither statute, however, can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” (Most experts believe that the Constitution strictly limits the president’s power to declare and conduct war—see 1787). Power More Extensive than Congress Authorized - Yoo argues further that the September 14 resolution does not represent the limits to the president’s authority. “We think it beyond question” that Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” Congress’s “Joint Resolution is somewhat narrower than the president’s constitutional authority,” Yoo writes, as it “does not reach other terrorist individuals, groups, or states which cannot be determined to have links to the September 11 attacks.” The president’s broad power can be used against selected individuals suspected of posing a danger to the US, even though it may be “difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States.” Yoo concludes: “[W]e do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the president from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.” 'Unenumerated' Presidential Powers - Yoo even asserts that the president has more power than his memo claims: “[T]he president’s powers include inherent executive powers that are unenumerated in the Constitution,” including but not limited to the power to take the country to war without Congressional input. [US Department of Justice, 9/25/2001; Savage, 2007, pp. 121-122]Memo Remains Secret for Three Years - The contents of this memo are not disclosed until mid-December 2004. [Newsweek, 12/18/2004; Newsweek, 12/27/2004]

Lt. Col. Stuart Couch. [Source: Wall Street Journal]Mohamedou Ould Slahi, a Mauritanian businessman and alleged liaison between Islamic radicals in Hamburg and Osama bin Laden with foreknowledge of the 9/11 plot (see 1999 and January-April 2000), is arrested in Mauritania by secret police, his family says. By December, he will be in US custody. He will later be housed at a secret CIA facility within Camp Echo at the Guantanamo Bay Naval Station. [Washington Post, 12/17/2004] In 2007, it will be reported that one of Slahi’s prosecutors, Lt. Col. Stuart Couch, has refused to continue to prosecute Slahi after learning details of Slahi’s tortures at Guantanamo. [Wall Street Journal, 3/31/2007] The Nation will later report, “Aside from the beatings, waterboarding, stress positions, and sexual degradation that have been the norm at Guantanamo, Slahi was taunted with details of his mother’s incarceration and rape in an elaborate hoax by an officer who claimed to be representing the White House.” While Couch believes Slahi is a high-level al-Qaeda operative, he also believes the much of the evidence against him is not credible because of the methods used to obtain it. [Nation, 4/4/2007]

Several weeks after the 9/11 attacks, two agents of MI5, the British equivalent of the FBI, meet with Bisher al-Rawi at his London house and try to recruit him to work as an informant. By one account, the meeting takes place one day after 9/11. Al-Rawi is an ideal candidate because he is well-educated, fluent in English, and a long-time friend of London imam Abu Qatada. [Independent, 3/16/2006; Washington Post, 4/2/2006] Qatada himself has been working as an informant for MI5 since 1996 (see June 1996-February 1997). Al-Rawi will later claim that MI5 asked him to serve as an interpreter between MI5 and Arabic speakers several times before 9/11. He did so, including interpreting for Qatada. He will later comment, ‘On two occasions I asked the officers in private, “Is it OK to have a relationship with Abu Qatada? Is this a problem?’ And they always said, ‘No, it’s fine, it’s OK.’” Al-Rawi agrees to become an informant and begins regularly meeting with the two agents in hotel rooms around London. [Independent, 3/16/2006] For the next year, he will mostly work as a go-between between MI5 and Qatada. Presumably, it would be dangerous for the well-known imam to be seen meeting directly with British agents (see Late September 2001-Summer 2002).

Bradford Berenson. [Source: PBS]In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” [New York Times, 10/24/2004] This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). [Clarke, 2004, pp. 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/6/2004]

Jamal Udeen, a British national of Jamaican descent, also known as Jamal al-Harith, and born Ronald Fiddler, allegedly on his way to Turkey, is arrested by the Taliban and locked up in a jail in Kandahar on suspicion of being a British spy. Udeen appears to be in real physical danger. A fellow prisoner, whom he suspects is an American, is beaten severely and dies. “I am sure I would have got the same treatment,” Udeen recalls, “but I made sure that every time my guards saw me I was praying.… The Taliban liked me because I always had the Koran in my hands. I was beaten very badly, but not as badly as most of the other inmates.” He later tells the Americans about the killed detainee. “They tried to say the man wasn’t an American, but I know he was.” [Mirror, 3/12/2004] Udeen and the other inmates are “praying for the Americans to come” and free them. [London Times, 3/11/2004]

According to several press reports, the CIA has set up a secret detention and interrogation center (see October 2001-2004) at Bagram Air Base in Afghanistan where US intelligence officers are using aggressive techniques on detainees. The captives—imprisoned in metal shipping containers—are reportedly subjected to a variety of “stress and duress” interrogation tactics. [Washington Post, 12/26/2002; New York Times, 3/9/2003] The detention facility at Bagram is a rusting hulk originally built by the Soviet Army as an aircraft machine shop around 1979, and later described by the New York Times as “a long, squat, concrete block with rusted metal sheets where the windows had once been.” It is retrofitted with five large wire pens and a half-dozen plywood isolation cells, and is dubbed the Bagram Collection Point, or BCP, a processing center for prisoners captured in Afghanistan and elsewhere. The facility typically holds between 40 to 80 prisoners before they are interrogated and screened for possible transfer to Guantanamo. [New York Times, 5/20/2005] Detainees are often forced to stand or kneel for hours, wear black hoods or spray-painted goggles for long periods of time, and stand or sit in awkward and painful positions. They are also reportedly thrown into walls, kicked, punched, deprived of sleep, and subjected to flashing lights and loud noises. [Washington Post, 12/26/2002; New York Times, 3/9/2003; Amnesty International, 8/19/2003] Some detainees tell of being “chained to the ceiling, their feet shackled, [and being] unable to move for hours at a time, day and night” (see December 5-9, 2002). [New York Times, 3/4/2003; New York Times, 9/17/2004] Psychological interrogation methods such as “feigned friendship, respect, [and] cultural sensitivity” are reported to be in use as well. For instance, female officers are said to sometimes conduct the interrogations, a technique described as being “a psychologically jarring experience for men reared in a conservative Muslim culture where women are never in control.” [Washington Post, 12/26/2002] Human rights monitors are not permitted to visit the facility. [Washington Post, 12/26/2002; Agence France-Presse, 12/29/2002] The US claims that the interrogation techniques used at Bagram do not violate international laws. “Our interrogation techniques are adapted,” Gen. Daniel McNeil claims in early March 2003. “They are in accordance with what is generally accepted as interrogation techniques, and if incidental to the due course of this investigation, we find things that need to be changed, we will certainly change them.” [Guardian, 3/7/2003]

The United States government creates a multi-layered international system of detention centers and prison camps where suspected terrorists, enemy combatants, and prisoners of war are detained and interrogated. [Washington Post, 5/11/2004, pp. A01] The Washington Post reports in May 2004: “The largely hidden array includes three systems that only rarely overlap: the Pentagon-run network of prisons, jails, and holding facilities in Iraq, Afghanistan, Guantanamo, and elsewhere; small and secret CIA-run facilities where top al-Qaeda and other figures are kept; and interrogation rooms of foreign intelligence services—some with documented records of torture—to which the US government delivers or ‘renders’ mid- or low-level terrorism suspects for questioning…. The detainees have no conventional legal rights: no access to a lawyer; no chance for an impartial hearing; and… no apparent guarantee of humane treatment accorded prisoners of war under the Geneva Conventions or civilians in US jails.” [Washington Post, 5/11/2004, pp. A01] One administration official tells the New York Times that some high-level detainees may be held indefinitely. [New York Times, 5/13/2004] Secrecy permeates the system. For example, renditions are done covertly and the locations of the secret CIA-run interrogation centers are considered “so sensitive that even the four leaders of the House and Senate intelligence committees, who are briefed on all covert operations, do not know them.” [Washington Post, 5/11/2004, pp. A01] In May 2004, it is estimated that there are 10,000 prisoners being held in US facilities around the world. They come from a number of countries including Jordan, Lebanon, Libya, Malaysia, Oman, Saudi Arabia, Somalia, Sudan, Syria, Sweden, Tunisia, Turkey, Ukraine, Britain, the Palestinian territories, and Yemen. [Independent, 5/15/2004]

One of the executive jets used by the CIA to fly prisoners to Guantanamo. This one, a Gulfstream with tail number N44982 when used by the CIA, is pictured in Geneva, Switzerland in 2005 with a new tail number. [Source: Public domain via Wikipedia]A secret arrangement is made in Brussels, Belgium, by all members of NATO. Lord George Robertson, British defense secretary and later NATO’s secretary general, will later explain NATO members agree to provide “blanket overflight clearances for the United States and other allies’ aircraft for military flights related to operations against terrorism.” [London Times, 11/25/2007] Over 700 prisoners will fly over NATO countries on their way to the US-controlled Guantanamo prison in Cuba beginning in 2002 (see January 14, 2002-2005). Conditions of Transfer - According to a 2007 report by the International Committee of the Red Cross (ICRC—see March 15, 2009), detainees flown on CIA rendition flights would be: Photographed both clothed and naked; Subjected to body cavity (rectal) searches, with some detainees later alleging that they were administered suppositories of some sort; Dressed in a diaper and a tracksuit, with earphones placed over the ears (through which shatteringly loud music would sometimes be played), a blindfold, black goggles, and sometimes cotton wool placed over the eyes; Shackled by hands and feet, and thus carried onto an airplane, where they would remain, without toilet privileges, from one to 30 hours. The prisoners would usually be allowed to sit upright, but the ICRC will later find that on “some occasions detainees were transported lying flat on the floor of the plane… with their hands cuffed behind their backs,” causing them “severe pain and discomfort,” as they were moved from one location to another. [New York Review of Books, 3/15/2009]

“Operation Enduring Freedom,” the US’s first military answer to the attacks of 9/11, starts with a bombing campaign on selected targets in the Afghan countryside. On October 19, Special Forces troops are deployed to occupy parts of the country in collaboration with the Northern Alliance, an armed faction hostile towards the Taliban government. In the following weeks, a fierce hunt ensues for members of the Taliban and al-Qaeda. [White House, 5/10/2005]

As early as October 2001, according to the Guardian, the Pentagon, too, contemplates the use of aggressive methods of interrogation. Soon after the start of the war in Afghanistan, lawyers at the Defense Department are requested to explore the legal room for action in this regard. “There was a kind of sub rosa [secret] thought process during at least the first few months of the prosecution of the war on terror,” says a former Pentagon official. Lawyers begin discussing what methods could be declared allowable for extracting information. “It did not include electric probes in the genitals,” the official says. “But there were certainly a range of psychological measures.” [Guardian, 6/23/2004]

The commander of US Central Command (CENTCOM), which encompasses the area of Afghanistan, issues an order instructing that the Geneva Conventions are to be applied to all captured individuals. [Wallach, 9/29/2004]

A Washington Post article hints at the US government’s use rendition and torture. It refers to four suspects out of the hundreds arrested in the US—Zacarias Moussaoui, Nabil al-Marabh, Ayub Ali Khan, and Mohammed Azmath—who may actually have links to al-Qaeda (see October 20, 2001). The article quotes an “experienced FBI agent involved in the investigation,” who says: “We are known for humanitarian treatment, so basically we are stuck.… Usually there is some incentive, some angle to play, what you can do for them. But it could get to that spot where we could go to pressure… where we won’t have a choice, and we are probably getting there.” The article goes on to mention: “Among the alternative strategies under discussion are using drugs or pressure tactics, such as those employed occasionally by Israeli interrogators, to extract information. Another idea is extraditing the suspects to allied countries where security services sometimes employ threats to family members or resort to torture.” [Washington Post, 10/21/2001] Although it is little known in the US at the time, the CIA has already been renditioning suspects to countries known for practicing torture (see September 23, 2001), and has made arrangements with NATO countries to increase the number of such renditions (see October 4, 2001). Azmath and Khan will later be cleared of al-Qaeda ties and released (see October 20, 2001). Al-Marabh will be deported to Syria under mysterious circumstances and rearrested by the Syrian government (see Spring 2004). Moussaoui will be sentenced to life in prison in the US (see May 3, 2006).

The Gulfstream V with tail number N379P used to rendition Jamil Qasim Saeed Mohammed and many others. [Source: Washington Post]Jamil Qasim Saeed Mohammed, a microbiology student from Yemen who is suspected of membership in al-Qaeda and involvement in the bombing of the USS Cole, is apprehended in Pakistan by the Pakistani ISI at the request of the US. [Associated Press, 10/28/2001; St. Petersburg Times, 10/28/2001; Washington Post, 3/11/2002] In the early hours of October 23, 2001, he is taken to a secluded part of Karachi International Airport. Shackled and blindfolded, the Pakistanis deliver him to US agents, according to the Washington Post, “without extradition or deportation papers.” [Washington Post, 3/11/2002] From there, at about 2:40 a.m., Mohammed is put on a US-registered jet and flown to Jordan. His fate is unknown from then on. [Amnesty International, 8/19/2003] The plane is a Gulfstream V with tail number N379P, owned by a company named Premier Executive Transport Services Inc. (PETS), in Dedham, Massachusetts. The company is apparently a CIA front. [Washington Post, 12/27/2004] Reporter Fredrik Laurin later discovers that the chartered Gulfstream is leased almost exclusively to the US administration. [Guardian, 9/13/2004] Since its discovery, this Gulfstream will be spotted at Washington’s Dulles International Airport, Guantanamo Bay, Amman (the military airport), Baghdad, Baku, Cairo, Dubai, Islamabad, Karachi, Kuwait City, Rabat, Riyadh, and Tashkent, Frankfurt, Glasgow, Stockholm, Larnaca on Cyprus, and other airports in England and Ireland. [Washington Post, 7/25/2004; Washington Post, 12/27/2004] The jet will further be found to have a permit to land at US military bases around the world. [Guardian, 9/13/2004] As of early 2008, he still has not been seen or heard of anywhere. Amnesty International has asked the Jordanian government for information on his whereabouts but has not received an answer. [Washington Post, 12/1/2007]

Al-Qaeda Hamburg cell member Mohammed Haydar Zammar travels from Germany to Morocco. Not long after, perhaps in November, he is arrested by Moroccan police with US assistance. Although he is a German citizen and under investigation by Germany, German intelligence remain unaware of his arrest, and only learn about it from the newspapers in June 2002. He is sent to Syria, where there are formal charges against him (see December 2001). Zammar reportedly now claims he recruited Mohamed Atta and others into the al-Qaeda Hamburg cell. [Washington Post, 6/19/2002] It is widely suspected that the US arranged for Zammar to be sent to Syria so that he could be more thoroughly interrogated using torture. The Germans are angry that the US has been submitting questions for Zammar and learning answers from Syria, but have not informed Germany of what they have learned [Daily Telegraph, 6/20/2002; Christian Science Monitor, 7/26/2002]

An Australian citizen named Mamdouh Habib is arrested in Pakistan by Pakistani authorities. He is arrested while traveling on a bus from Quetta to Karachi, after possibly attending an al-Qaeda training camp in Afghanistan. Also arrested on the bus are Ibrahim Diab, a Lebanese national, and Bechim Ademi, a naturalized German, two recently recruited members of the al-Qaeda cell in Hamburg, Germany that also included a few of the 9/11 hijackers (see September 10, 2001). Diab and Ademi are also coming from an al-Qaeda training camp, but they will later claim they had only just met Habib in Quetta before getting on the bus. Pakistani authorities appear to have been looking for Diab and Ademi, and only picked up Habib because he was with them. However, Diab and Ademi are soon returned to Germany and then released, while Habib is renditioned to Egypt and tortured there, and then sent to the US-run Guantanamo prison in Cuba (see October 29, 2001-April 2002). [Australian Broadcasting Corporation, 7/20/2004; Rasul, Iqbal, and Ahmed, 7/26/2004 ]

On October 29, 2001, an Australian citizen named Mamdouh Habib is arrested in Pakistan by Pakistani authorities, while traveling with two peripheral members of the al-Qaeda cell in Hamburg, Germany (see October 29, 2001). Over the next three weeks he is interrogated by three Americans. He is then taken to an airfield, where American individuals beat him up, cut off his clothes, and make him pose “while another [takes] pictures” with a foot on his neck. He is first taken to Bagram and from there flown to Egypt, where he spends the next six months in a six by eight foot cell and is forced to sleep on a concrete floor with one blanket. [Rasul, Iqbal, and Ahmed, 7/26/2004 ; Washington Post, 1/6/2005] According to Habib, the Australian high commission in Pakistan authorizes his transfer to Egypt. [Amnesty International, 9/2004 ] During interrogations in Egypt, he is repeatedly kicked, punched, and beaten with a stick, rammed with an electric cattle prod, injected with unknown drugs, attacked with dogs, drenched with cold water, and deprived of sleep. Sometimes he is “suspended from hooks on the wall” with his feet on the side of a large metal rotating drum. When Habib fails to provide his interrogators with the answers they want, they throw a switch and “a jolt of electricity” goes through the drum, forcing Habib to “dance,” and making the drum rotate. Thus, “his feet constantly [slip], leaving him suspended by only the hooks on the wall.” Another technique used on Habib is to place him in ankle-deep water “wired to an electric current.” According to a petition Habib later files with a US District Court, his interrogators tell him that unless he confesses, they will “throw the switch and electrocute him.” Habib submits and gives false confessions. [Amnesty International, 9/2004 ; Washington Post, 1/6/2005]

White House lawyers have become impatient with the interagency group’s (see Shortly Before September 23, 2001) less than full endorsement of the use of military commissions to try suspected terrorists. By late October, Timothy E. Flanigan takes the task of designing a strategy for prosecuting terrorists away from the group and proceeds to focus on military commissions as the only preferable option. The White House lawyers now work more in secret, excluding many agencies and most of the government’s experts in military and international law, but together with the lawyers of the Office of Legal Counsel (OLC), with the intention of drafting a presidential military order. [New York Times, 10/24/2004] There is a remarkable secrecy surrounding the drafting process (see November 11-13, 2001). Both Attorney General John D. Ashcroft and his deputy, Larry D. Thompson, are closely consulted. But the head of the Justice Department’s Criminal Division, Michael Chertoff is kept out of the loop. Secretary of Defense Donald H. Rumsfeld is informed through his general counsel, William J. Haynes. Other Pentagon experts, however, are excluded. [New York Times, 10/24/2004] When the order is signed (see November 13, 2001), many express surprise. “That came like a bolt from the blue,” a former Pentagon official says. “Neither I nor anyone I knew had any insight, any advance knowledge, or any opportunity to comment on the president’s military order.” [Guardian, 6/9/2004] “I can’t tell you how compartmented things were,” retired Rear Adm. Donald J. Guter, the Navy’s Judge Advocate General, later recalls. “This was a closed administration.” [New York Times, 10/24/2004]

Shortly after the US invasion of Afghanistan (see October 19, 2001), the CIA takes control of an abandoned brick factory, and turns it into a training facility and secret prison. The facility, code-named the “Salt Pit,” is a 10-acre facility just north of Kabul. It is used to train Afghan counterterrorism forces and to house prisoners. The agency intends the Salt Pit to be a “host-nation facility,” manned and operated entirely by Afghans, in part so that CIA officials cannot be held accountable for the actions taken by the Afghan guards and interrogators. Similar methodologies are used in secret CIA prisons in other countries. However, the CIA pays the entire cost of maintaining the facility. It vets the guards who work there, and decides which prisoners will be kept in the facility, including some senior al-Qaeda operatives who will eventually be transferred to other facilities such as Guantanamo. Sometime before March 2005, the CIA will transfer its operations to another facility, and the Salt Pit will be demolished. [ABC News, 11/18/2005]

In conjunction with the Federalist Society, the Heritage Foundation publishes a legal paper that appears to reflect much of the thinking at this time of prominent White House and Justice Department lawyers. The paper espouses the use of military commissions, arguing that this will offer the government several advantages. “In particular,” the paper’s authors argue, “trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial.” The disadvantage of a normal trial would be that they would be limited by constitutional rules with regard to “what can be done to protect classified information.” In addition, in “federal district courts, the government has an obligation under Article III and the Sixth Amendment to conduct a ‘public trial’ and present to the jury, in open court, the facts on which it is relying to establish a defendant’s guilt.” But the authors do acknowledge that “[t]he use of military commissions with respect to individuals not regularly enrolled in a military force, represents a clear departure from normal legal processes and some of America’s most fundamental judicial traditions.” Surprisingly, the Geneva Conventions of 1949 are not mentioned even once. Almost in passing, the authors suggest an option that is to become reality. “[I]t is likely,” they write, “that the Supreme Court would allow the trial overseas by military commission of al-Qaeda members captured in Afghanistan, regardless of how it would treat defendants in this country.” [Rivkin, Casey, and Bartram, 11/5/2001; Rivkin, Casey, and Bartram, 11/5/2001] It is an indication that by this time the government contemplates using the US Naval Station at Guantanamo Bay, which is formally on Cuban soil, to accommodate suspected al-Qaeda and Taliban detainees.

The Justice Department announces that it has put 1,182 people into secret custody since 9/11. Most all of them are from the Middle East or South Asia. [New York Times, 8/3/2002] After this it stops releasing new numbers, but human rights groups believe the total number could be as high as 2,000. [Independent, 2/26/2002] Apparently this is roughly the peak for secret arrests, and eventually most of the prisoners are released, and none are charged with any terrorist acts (see July 3, 2002; December 11, 2002). Their names will still not have been revealed (see August 2, 2002).

Newsweek columnist Jonathan Alter writes: “We can’t legalize physical torture; it’s contrary to American values. But even as we continue to speak out against human rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And we’ll have to think about transferring some suspects to our less squeamish allies, even if that’s hypocritical. Nobody said this was going to be pretty.” [Newsweek, 11/5/2001]

The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Alan Dershowitz. [Source: Huffington Post]The Los Angeles Times publishes an op-ed piece by Harvard law professor Alan M. Dershowitz arguing that the use of torture should be permissible in situations where an imminent large-scale threat against human life can be averted by forcibly obtaining intelligence from an uncooperative suspect. Dershowitz reasons that in such “ticking bomb” scenarios, a judge should be able to provide “torture warrants,” giving the FBI authorization “to employ specified forms of non-lethal physical pressure to compel” a suspect, who has been granted immunity from prosecution, to talk. He also says that since there is no doubt that torture would be used in such cases anyway, it should be regulated. “If we are to have torture, it should be authorized by the law,” he writes. [Los Angeles Times, 11/8/2001]

William J. Haynes. [Source: US Defense Department]William J. Haynes, Defense Secretary Donald Rumsfeld’s general counsel, shows a draft of a presidential order establishing military commissions to Colonel Lawrence J. Morris, a judge advocate general (JAG) attorney with strong experience in military justice and the laws of war. Morris heads a Pentagon legal team that has so far been excluded from the discussion on how suspected terrorists should be prosecuted. Col. Morris is given just 30 minutes to read the draft but is not allowed to keep a copy or even take notes. The next day, the Army’s Judge Advocate General, Major General Thomas J. Romig, hastily convenes a meeting of Pentagon lawyers to prepare suggestions for improvement, with an eye on bringing the order closer to existing military legal standards. The final order, however, includes none of the lawyer’s recommendations. “They hadn’t changed a thing,” a military official will later recall. [New York Times, 10/24/2004; Savage, 2007, pp. 138]

The Army’s Judge Advocate General, Major General Thomas J. Romig, hastily meets with JAG lawyers Colonel Lawrence Morris and Brigadier General Scott Black to prepare suggestions for improving a draft presidential order establishing military commissions (see Late October 2001 and November 9, 2001), with an eye on bringing the order closer to existing military legal standards. The order is modeled on a single World War II military commission (see 1942), and ignores the body of relevant law that came after that commission, including the Uniform Code of Military Justice and the Geneva Conventions (see November 6, 2001). In their view, the Bush administration seems determined to ignore 60 years of law and go back to a rough system of justice that, Romig will later say, “was going to be perceived as unfair because it was unnecessarily archaic.” The three work through the Veterans’ Day weekend on a number of suggestions that would bring the order closer to existing military legal standards. The final order, however, will include none of the lawyer’s recommendations. “They hadn’t changed a thing,” a military official will later recall. [New York Times, 10/24/2004; Savage, 2007, pp. 137-138]

Vice President Cheney leads a meeting at the White House to put the finishing touches on a draft presidential order establishing military commissions (see Late October 2001 and November 9, 2001). The meeting includes Attorney General John Ashcroft, Defense Department chief counsel William J. Haynes, and several White House lawyers, but leaves out senior officials of the State Department and the National Security Council. Cheney has decided to tell neither National Security Adviser Condoleezza Rice nor Secretary of State Colin Powell about the order until it has already been signed. Cheney has also told no one in the interagency working group ostensibly formulating the administration’s approach to prosecuting terrorists (see Shortly Before September 23, 2001). Ashcroft angrily dissents from Cheney’s plan to give the White House sole authority over the commissions, and invokes his authority as the nation’s top law enforcement official to demand that the Justice Department be given a say in the decision. Cheney overrules Ashcroft’s objections. He will discuss the draft with President Bush over lunch a few days later (see November 11-13, 2001). [New York Times, 10/24/2004; Savage, 2007, pp. 138]

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